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Shaheed v. State12/1/2004
Following a bench trial, Aaron Shaheed was convicted of driving under the influence in violation of OCGA § 40-6-391 (a) (1) (less safe driver), no proof of insurance, and an expired license plate. Shaheed appeals from the August 24, 2004 order denying his amended motion for new trial, alleging that the evidence was insufficient to support a conviction under OCGA § 40-6-391 (a) (1), driving under the influence of alcohol to the extent that it is less safe for the person to drive, and that his trial counsel was ineffective. Because the State provided no evidence that Shaheed was a less safe driver as a result of being under the influence of alcohol, we reverse that conviction.
1. On appeal from a criminal conviction, we view the evidence in a light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. So viewed, the evidence shows that on December 31, 2002, Officer Devell Andrews of the City of Clarkston Police Department, observed Shaheed driving a vehicle with a tag positioned so that the validation date of the tag was not visible. Using the computer in his patrol car, Officer Andrews ran the tag number through the Georgia Crime Information Center ("GCIC") and discovered that the tag had expired on October 29, 2001. Based on this information, Officer Andrews initiated a traffic stop of the vehicle Shaheed was driving.
Once stopped, Officer Andrews approached Shaheed's vehicle and requested Shaheed's driver's license and proof of insurance. Shaheed was able to provide Officer Andrews with a driver's license, but was unable to produce proof of current insurance. Officer Andrews requested that Shaheed step out of his vehicle. After Shaheed exited his vehicle, Officer Andrews detected a strong order of alcohol coming from Shaheed's person and asked if he had been drinking. Shaheed responded to Officer Andrews' question in the affirmative. Shaheed refused Officer Andrews' request that he submit to field sobriety evaluations. Officer Andrews took Shaheed into custody, placed him in the rear seat of his patrol car, read him the implied consent notice for suspects age 21 or over, and requested that he submit to a chemical test of his breath. Shaheed refused. Shaheed was taken to the jail, where Officer Andrews once again read him the implied consent notice for suspects age 21 and over and, once more, requested him to submit to a chemical test of his breath. Shaheed again refused.
At trial, Shaheed testified that the odor of alcohol that Officer Andrew's detected came from an open container of beer that his brother, who was a passenger in his car, was drinking. Shaheed further testified that Officer Andrews or the officer assisting him never requested that he submit to field sobriety evaluations and that he refused to submit to the requested chemical test of his breath because he was upset that an expired tag stop resulted in his arrest for driving under the influence .
The crime of driving while under the influence to the extent that it is less safe to drive requires showing three elements: (1) driving, (2) under the influence of alcohol, (3) to the extent that it is less safe for the person to drive. OCGA § 40-6-391 (a) (1). The third element requires proof of impaired driving ability, but not an actual unsafe act.
In this case, Officer Andrews testified that Shaheed admitted that he had been drinking. However, "impaired driving ability depends solely upon an individual's response to alcohol. Because in
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