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Lowenthal v. State1/23/2004
James E. Lowenthal was charged with driving under the influence ("DUI") of alcohol to the extent that he was a less safe driver, OCGA § 40-6- 391(a)(1), and driving under the influence of alcohol *267 by having an alcohol concentration of 0.08 grams or more, OCGA § 40-6-391(a)(5). A jury convicted Lowenthal of both offenses. [FN1] He appeals, arguing that the trial court erred by admitting testimony of a prior DUI without holding**728 a pre-trial hearing, by refusing to enforce a proposed stipulation of the prior DUI offered by defense counsel, by allowing the state to introduce a witness's testimony from the previous trial without a sufficient showing of due diligence by the state to determine that the witness was unavailable, and by allowing the admission of hearsay under the res gestae exception. Finding no error in the trial court's rulings, we affirm.
FN1. Lowenthal's first trial resulted in a hung jury and mistrial.
Viewed in the light most favorable to the verdict, the evidence shows that on July 6, 2002, Lowenthal went to a bar with his girlfriend, Michelle Maples, and another couple, Jessie and Laura Skidmore. While at the bar, Lowenthal drank "[q]uite a few beers," and Maples became angry with him for dancing with another woman. On the way back to Maples's home, Lowenthal asked Jessie Skidmore to "[s]top the car and let me out." Lowenthal got out of the car, and the three remaining individuals continued back to Maples's home. When Lowenthal did not return to Maples's home, Jessie Skidmore suggested they go out and look for him to make sure "he didn't get locked up for being a public drunk."
In the meantime, Officer Brian Dunn of the Henry County Police Department had stopped Lowenthal. Jessie Skidmore and Maples passed Officer Dunn and Lowenthal on the roadside, and Jessie Skidmore testified that, "we just kept going by; we didn't even stop to pick him up or nothing. [Maples] told me to keep driving, so I kept driving." Officer Dunn drove Lowenthal to a nearby gas station, dropped him off at the pay phone, and advised him to call a ride. Officer Dunn warned Lowenthal not to drive. Jessie Skidmore and Maples returned to Maples's home, and Lowenthal showed up five to ten minutes later.
Maples and Lowenthal argued again, and Lowenthal took his car keys and left. After Lowenthal drove away in his car, Jessie Skidmore and Maples followed him down Interstate 75 until he exited the interstate and entered a Shoney's parking lot. While following Lowenthal, Maples used her cell phone to call 911 and report that they were following a drunk driver. [FN2] Several minutes later, Officer Jason *268 Sanders of the Henry County Police Department arrived at the Shoney's parking lot. As he approached Lowenthal's parked car, Officer Sanders felt the hood to see if the engine was still warm. Officer Sanders testified that the engine was hot.
FN2. The Henry County 911 dispatcher testified that at approximately 3:47 a.m., a female called and advised that she was following a driver that looked suspiciously drunk, and they were on the McDonough exit near Wal-Mart and they were getting on [Interstate] 75 south. They drove down 75 south. I stayed on the phone with her, and she gave me a tag number, gave me her name, her cell phone number, and said they were getting off [exit] 216, and they turned right and went into the Shoney's parking lot. And she stayed a little bit back at that location and advised that the driver was now laying [sic] down in the vehicle.
Officer Sanders noticed that Lowenthal's vehicle smelled of alcohol, that his eyes were red and glassy, and that his speech was slurred. Officer Sanders asked Lowenthal if he had been drinking, and Lowenthal stated that he drank four beers earlier in the evening. Officer
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