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Worthman v. State2/23/2004
A jury found Gregory Worthman guilty of driving while under the influence of alcohol to the extent that he was a less safe driver. Worthman appeals, arguing the trial court erred in (1) admitting the results of his breath test, (2) allowing the state to mislead the jury in its opening statement, (3) permitting an officer to testify outside his area of expertise, and (4) presenting the jury instructions. Worthman also claims he was denied effective assistance of counsel. Because we find no error, we affirm Worthman's conviction.
Viewed in a light most favorable to support the jury's verdict, the evidence shows that an off-duty police officer observed a vehicle stopped approximately five feet from an intersection with a male slumped over the steering wheel in the driver's seat. The vehicle was not near a house or in a driveway. The officer approached the car and knocked on the window a couple of times. Worthman finally raised his head without looking directly at the officer and then rolled his head back downward. When the officer opened the unlocked door of the vehicle, he noticed a strong odor of alcohol coming from inside the vehicle and saw that Worthman had vomited on himself and inside the vehicle. Worthman appeared groggy, dazed, and was slow in responding.
Further investigation revealed that Worthman did not live in the neighborhood nor did **645 he know anyone in the area. Worthman explained that he was coming from dinner at the Cheetah nightclub, *209 that he had been drinking, and that he started feeling sick and pulled off the interstate. Believing Worthman was not able to drive safely, the officer removed the keys from the ignition and radioed for a DUI unit. A DUI officer arrived on the scene and found Worthman sitting with the driver's side door open vomiting on the roadway. The DUI officer noted that Worthman's speech was slurred, that he was covered in vomit, and that the interior of the car was a "mess."
Worthman performed the horizontal gaze nystagmus test, but the officer allowed him to perform this test while sitting in his car because he was swaying too much. Worthman scored the maximum number of clues on this evaluation. The DUI officer then attempted to administer the nine-step walk and turn and the one-leg stand evaluations. However, due to Worthman's unsteadiness and his level of impairment, Worthman was unable to perform these evaluations. Based on his observations, the DUI officer arrested Worthman for DUI and read him the Georgia Implied Consent Notice. At the jail, Worthman again vomited and eventually agreed to take the state's breath test. The results were 0.120 and 0.116.
1. The record shows that Worthman was charged with both driving while under the influence of alcohol to the extent that he was a less safe driver [FN1] and driving while under the influence of alcohol with a blood-alcohol level exceeding the statutory limit (driving while under the influence per se). [FN2] Worthman moved to dismiss the per se count, arguing that the state failed to establish that the blood-alcohol test was performed within three hours of the driving or actual physical control of the car ended, as required by the per se statute. The trial court denied the motion. At the conclusion of the state's case, Worthman moved for a directed verdict on the per se count, reiterating his same argument regarding the time frame. Before the trial court rendered its decision, the state moved to nolle pros the per se count. Worthman did not object.
FN1. OCGA § 40-6-391(a)(1).
FN2. OCGA § 40-6-391(a)(5).
Worthman now asserts as error the trial court's denial of his pre-trial motion, arguing that the denial resulted in the admission of evidence that should not have been considered by the jury. Specifically, Wort
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