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Totino v. State3/15/2004
A jury found Nicholas Joseph Totino guilty of driving under the influence of alcohol to the extent that he was less safe to drive, driving while having an alcohol concentration of 0.10 grams or more (a "per se violation"), and following another vehicle too closely. Totino appeals, arguing that the evidence was insufficient to support the verdict and that the trial court should have granted a directed verdict of acquittal. Totino further asserts that the trial court erred in failing to rule on his motion in limine, refusing to exclude the arresting officer from the courtroom during trial, and denying his motion for new trial. Finding no error, we affirm.
1. On appeal from a criminal conviction, we construe the evidence in a light most favorable to the jury's verdict, and the defendant no longer enjoys a presumption of innocence. [FN1] We do not weigh the evidence or resolve issues of witness credibility, but merely determine whether the evidence was **751 sufficient for the jury to find Totino guilty beyond a reasonable doubt. [FN2]
FN1. See Grooms v. State, 261 Ga.App. 549(1), 583 S.E.2d 216 (2003).
FN2. See id.
Viewed in this manner, the evidence shows that, just before 2:00 a.m. on May 9, 2001, Lieutenant Thomas Bardugon of the Gwinnett *266 County Police Department observed Totino driving "right on the tail" of another car on Interstate 85. According to Bardugon, Totino was traveling approximately 70 mph and was, at times, only five feet from the car in front of him. Bardugon followed Totino for several miles, noting that Totino's vehicle weaved within its lane and stayed very close to the car in front the entire time.
Bardugon eventually stopped Totino and approached the vehicle. He immediately detected an odor of alcohol coming from Totino's car, and when Totino got out of the car, Bardugon noticed an alcohol odor about his person. In addition, Totino's speech was slurred and his eyes were slightly bloodshot. Totino admitted to Bardugon that he had consumed at least three alcoholic beverages that night.
Although Totino refused to perform any field sobriety tests, he agreed to blow into an alco-sensor, which tested positive for alcohol. Based on his observations, Bardugon determined that Totino was under the influence of alcohol to the extent that he was less safe to drive and arrested him. Following the arrest, Bardugon took Totino to jail, where he tested Totino's breath on the Intoxilyzer 5000. Totino gave two samples, which registered 0.114 and 0.101 grams of alcohol in the blood, respectively. These tests were conducted within three hours of Totino's operation of a car.
(a) Totino argues that the State failed to prove his guilt beyond a reasonable doubt. We disagree. Given Bardugon's testimony regarding Totino's manner of driving, his physical manifestations, and his performance on the breath tests, the jury was authorized to conclude that Totino was under the influence of alcohol to the extent that he was less safe to drive. [FN3] Furthermore, the results of the Intoxilyzer 5000 tests, as well as Bardugon's testimony, support the jury's conclusion that Totino's blood-alcohol content exceeded 0.10 grams within three hours of driving a car, a per se violation of OCGA § 40-6-391(a)(5). [FN4] Finally, a jury could conclude from the evidence presented that Totino was guilty of following another vehicle too closely. [FN5]
FN3. See Viau v. State, 260 Ga.App. 96, 97(1)(a), 579 S.E.2d 52 (2003); OCGA § 40-6-391(a)(1). We find unavailing Totino's novel assertion, presented without supporting argument or citation of authority,
that Bardugon's decision to follow him on Interstate 85 was "tantamount to entrapment."
FN4. See Viau, supra at (1)(b). At the time of Totino's arrest, the legal limit fo
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