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Shoemake v. State3/18/2004
is habit and lack of a specific recollection "went to its weight and credibility[,] but [does] not affect its sufficiency on appeal." Wesley v. State, 228 Ga.App. 342, 343(1), 491 S.E.2d 824 (1997) (finding sufficient evidence that implied consent was given based on officer's testimony that he always used whichever implied consent card was in effect). It did not render the testimony insufficient to prove that the implied consent warning was given at the time of Shoemake's arrest. The trial court properly denied this portion of Shoemake's motion to suppress.
3. In his final enumeration of error, Shoemake contends the evidence was insufficient to affirm his conviction.
(a) In support of this argument, Shoemake asserts the State failed to prove the chain of custody for his blood sample and that we should therefore not consider the test results in our sufficiency analysis.
Where the State seeks to introduce evidence of a fungible nature, it must show a chain of custody adequate to preserve the identity of the evidence. The burden is on the State to show with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution. The State need not [disprove] every possibility of tampering, and need only establish reasonable assurance of the identity of the evidence. When there is only a bare speculation of tampering, it is proper to admit the evidence and let what doubt remains go to the weight.
(Citations and punctuation omitted.) Anderson v. State, 247 Ga. 397, 399(2), 276 S.E.2d 603 (1981).
*345 We have reviewed the chain of custody testimony and find that the State established reasonable assurances of the identity of the blood sample. Discrepancies in the testimony about whether the sample was sent to the Georgia Bureau of Investigation Crime Lab by mail or United Parcel Service go to the weight of the evidence and do not preclude admission of testimony about the blood sample. See Carver v. State, 175 Ga.App. 599, 601(2), 333 S.E.2d 697 (1985) (chain of custody established even though testimony differed about method and recipient of sample's delivery).
(b) Shoemake contends insufficient evidence supports his less safe conviction under OCGA § 40-6-391(a)(1) because the arresting officer did not see him drive, but was instead dispatched to the scene of the accident. However, after arriving at the scene, Shoemake told the arresting officer "that he was getting ready to get off on Highway 61 when a tractor trailer pulled out in front of him, and he had nowhere else to go. He had to hit the tractor trailer." Shoemake never told the officer that he was not driving or that another person had been driving his car. The officer, who is an experienced accident investigator, further testified that the tractor-trailer's lane was clearly established when it was struck, that Shoemake admitted that he had been drinking, that he smelled like alcohol, that his eyes were bloodshot, and that his speech was slurred.
We find this evidence, in addition to Shoemake's blood alcohol level of 0.178 grams, sufficient to prove a less safe DUI violation. Heath v. State, 229 Ga.App. 69, 493 S.E.2d 225 (1997).
Judgment affirmed.
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