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Gibson v. State1/28/2004
William Gibson was charged by accusation with DUI (OCGA § 40-6-391 (a)), and fleeing or attempting to elude a police officer (OCGA § 40-6-395 (a)). A jury found him guilty of fleeing but acquitted him of the DUI charge. His amended motion for new trial was denied, and he appeals. In his sole enumeration of error, he contends that the trial court erred in refusing to give his requested charge on obstruction of an officer, OCGA § 16-10-24, as a lesser included charge of fleeing or attempting to elude. We agree with Gibson that the charge should have been given, and we reverse his conviction.
The evidence presented at trial showed that Gibson and his wife had been sick with colds or flu. Gibson, a long haul truck driver, had been to North Carolina and South Carolina. When he reached the Greenville, South Carolina area, he stopped his truck and slept. He awoke at about 2:30 p.m. and continued home, arriving at about 4:00 p.m. He then went to sleep again, this time waking up at about 10:30 or 11:00 p.m. He finished the last of the cold medicine in the house and returned to bed, waking his wife. Because his wife needed some of the medication, Gibson got into their pickup truck and drove to the local supermarket to buy some. He made the purchase and was on his way home when he was stopped at a license and insurance check road block.
The evidence was in conflict as to what occurred after Gibson was stopped, with Gibson's testimony differing sharply from that of the arresting officer. But that is immaterial to resolution of this appeal; we need only determine whether some evidence supported a charge on obstruction. If so, Gibson's requested charge should have been given. For the purpose of this appeal, therefore, we need only consider Gibson's version of events.
According to Gibson, when the officer asked him for his driver's license, he informed the officer that he had left it in his work truck. He explained that because he had forgotten his wallet several times when leaving for long trips, he now always leaves the license in a pouch in that truck. The officer radioed the dispatcher with the information Gibson gave him and took Gibson's insurance card. The officer then leaned into the truck and asked Gibson if he had been drinking. When Gibson told him he had not, the officer requested that Gibson take an alcosensor test. Gibson complied, and the officer then told him he was under arrest for DUI.
Gibson testified that the officer then instructed him to pull his pickup truck over to the side of the road and park it. When told he would be going to jail, Gibson told the officer that the pickup truck was his family's only vehicle, and he requested that the officer follow him home, which was very close by, so that he could avoid having the truck impounded. He informed the officer that his home was "a block down the road." The officer refused. Gibson asked if he could call his wife so she could walk to the road block site and drive the truck home, and the officer again refused. After pleading with the officer to no avail, Gibson finally said: "I'm going to take my truck home, follow me," and he did just that.
Gibson testified that the officer knew where he lived, because he had received that information over the radio, was also holding Gibson's insurance card and registration, and had been told by Gibson where he lived. Gibson drove straight home at a normal speed and parked the truck in the driveway in its usual parking spot. The officer followed him. Along the way, when Gibson observed the officer's lights behind him, he "waved . . . out the window that motion, you know, I know I'm not doing anything."
The officer pulled up behind Gibson, flung open
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