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Allen v. State2/2/2004
Jefferson Allen appeals his convictions for driving under the influence of alcohol, disobedience of a traffic control device, and violation of Georgia's open container law. On appeal he contends that the trial court erred in (1) admitting similar transaction evidence, (2) giving its jury charge relating to Allen's refusal to submit to a chemical test, (3) giving its jury charge on the presumptions drawn from specific alcohol concentrations in the defendant's blood, and (4) considering the similar transaction offense in aggravation of Allen's sentence, when the certified copy of the plea and sentence revealed that Allen may not have voluntarily waived his right to counsel before entering the plea. Since Allen may not have voluntarily waived his right to counsel in the prior plea that was considered in aggravation of his sentence, and since Allen's other enumerations are without merit, we affirm the conviction but remand the case for re-sentencing.
Viewed in the light most favorable to the verdict, the evidence reveals that an officer pulled Allen over after he saw Allen run a red light. The officer detected a very strong odor of alcohol coming from Allen's car. The officer asked Allen to step out of the car, and Allen complied. The officer observed that Allen's eyes were bloodshot, that his speech was slurred, and that he was unsteady on his feet. Allen admitted that he had been drinking.
The officer gave Allen a portable breath test, which registered positive for alcohol. The officer also administered two field sobriety tests, both of which Allen failed. Based on his observations, the officer concluded that Allen was under the influence of alcohol to the extent that it was less safe for him to drive, and arrested him. The officer read Allen the Georgia Implied Consent warning, and Allen refused to submit to a breath test.
Prior to trial, the State gave notice of its intention to introduce evidence of a 1997 DUI offense as a similar transaction. The trial court conducted a hearing, and Allen's counsel objected to the admission of the conviction, arguing that the face of the citation did not give sufficient notice that the transaction involved alcohol (and not some other substance). The court admitted the transaction over counsel's objection.
During deliberations, the jury submitted questions to the judge concerning the effect of prior offenses on the defendant's potential punishment, the consequences to Allen for refusing to submit to a chemical test, and the difference between showing impairment based on blood-alcohol content and showing impairment based on the actual manner in which a person drives a vehicle. The judge informed the jury that their first question was not relevant to their deliberations. In response to the last two questions, the judge (1) recharged the jury on DUI law and the inference to be drawn when a defendant refuses a breath test after being read the implied consent notice, and (2) supplemented his original charge with additional charges relating to impairment based on blood-alcohol content. The judge gave the supplemental charges to give context to the previously-admitted similar transaction evidence, where testimony revealed that Allen's blood-alcohol content was 0.10 at the time of that offense. The jury found Allen guilty on all charges, and he now appeals.
1. Allen argues that the trial court erred in admitting evidence of his 1997 DUI offense as a similar transaction. Specifically, Allen contends that he was not given sufficient notice under Uniform Superior Court Rule 31.3 that the 1997 DUI similar transaction involved alcohol, because the citation did not specifically state on its face that the DUI was from alcohol. We hol
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