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Lanwehr v. State1/30/2004
After a jury trial, Christopher Lanwehr was convicted of disobeying a traffic control device and driving under the influence of alcohol (DUI). He appeals, challenging the sufficiency of the evidence supporting the guilty verdict on the DUI charge, evidentiary rulings by the trial court, and the court's jury charge. The challenges are without merit, so we affirm Lanwehr's conviction.
At 2:35 a.m., on March 28, 2002, an Atlanta police officer was driving his patrol car north on Piedmont Road when he saw the car ahead of him go through a red stop light. He stopped the car and spoke to the driver, Lanwehr. The officer told Lanwehr he had stopped him for running a red light, and Lanwehr replied that he had been talking on his cellular telephone. The officer noticed that Lanwehr's face was flushed and that he smelled of beer.
The officer asked Lanwehr, who was still sitting in his car, to say the alphabet beginning with the letter D and ending with T. Lanwehr twice failed the test, skipping letters, saying them out of order, and failing to stop at T. The officer asked Lanwehr if he had drunk anything, and Lanwehr said that he had drunk two beers at 9:00 the previous evening.
The officer told Lanwehr to step out of his vehicle. Lanwehr lost his balance and used his hand to brace himself as he got out of the car. The officer asked Lanwehr to submit to field sobriety tests and a roadside alco-sensor breath test. Lanwehr refused, saying that a friend who is a lawyer had previously instructed him not to submit to any such tests. During their conversation, the officer noticed that Lanwehr's speech was slurred.
The officer placed Lanwehr under arrest for driving under the influence of alcohol. He read the Georgia implied consent notice to Lanwehr and asked him if he would take a state-administered breath test. Lanwehr refused to take a breath test.
During an inventory of the contents of Lanwehr's car, the officer found a cup containing beer in the car. Lanwehr told the officer that *360 he had actually drunk three beers, and that the beer in his car was one of those beers. The officer transported Lanwehr to jail, where he again refused to take a breath test.
1. In reviewing the sufficiency of the evidence, we view the evidence in a light most favorable to support the verdict, and the appellant no longer enjoys the presumption of innocence. [FN1] We do not weigh the evidence or assess witness credibility, but determine only whether a rational trier of fact could have found the accused guilty of the crime charged beyond a reasonable doubt. [FN2]
FN1. Stearnes v. State, 261 Ga.App. 522(1), 583 S.E.2d 195 (2003).
FN2. Id.
Lanwehr was charged with driving under the influence of alcohol to the extent that he was a less safe driver. [FN3] As to that crime, the jury heard testimony that Lanwehr ran a red light, had a cup containing beer in his car, admitted drinking beer, smelled of beer, could not properly recite a portion of the alphabet, slurred his words, lost his balance, and refused a state-administered breath test. Such evidence is sufficient to support the jury's finding that Lanwehr is guilty beyond a reasonable doubt of driving under the influence of alcohol to the extent that he was a less safe driver. [FN4]
FN3. OCGA § 40-6-391(a)(1).
FN4. See Johnson v. State, 249 Ga.App. 29, 31-32(2), 546 S.E.2d
922 (2001); Driver v. State, 240 Ga.App. 513, 517(6), 523 S.E.2d 919 (1999); Duggan v. State, 225 Ga.App. 291, 292-294(1), 483 S.E.2d 373 (1997).
2. Lanwehr claims that the trial court erred in charging the jurors that they would be authorized to find Lanwehr guilty if **899 they found beyond a reasonable doubt that he did drive under the influence of alcohol and did disobey a traffic control device
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