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Shaheed v. State12/1/2004
dividual responses to alcohol vary, the presence of alcohol in defendant's body, by itself, does not support an inference that the defendant was an impaired driver." Further, while, Shaheed's refusal to submit to chemical testing may "be considered as positive evidence creating an inference that the test would show the presence of alcohol," it also does not create an inference that he had impaired driving ability as a result of drinking alcohol.
Here, there was no evidence that Shaheed's driving was impaired as a result of his ingesting alcohol. Officer Andrews did not testify that Shaheed was staggering, that his speech was slurred, or that there was anything unusual or erratic about his driving. In fact, Officer Andrews testified that he did not follow Shaheed long enough to form an opinion about his driving habits, that during the time he did observe his driving habits, Shaheed did not commit any traffic violations, and that he based his opinion that Shaheed was a less safe driver solely on the smell of alcohol on his person and his refusal to submit to field sobriety tests and chemical testing. "Accordingly, because there was nothing from which the jury could have inferred that [Shaheed] was under the influence of [alcohol] to the extent that he was a less safe driver, such as additional evidence of his physical condition or conduct at the time of his arrest, his conviction and sentence for violation of O.C.G.A. § 40-6-391 (a) [(1)] must be set aside."
From the sentence entered upon Shaheed's convictions, it is impossible to determine what portion of that sentence is attributable to the conviction for violation of O.C.G.A. § 40-6-391 (a) (1), driving under the influence to the extent it is less safe to drive. Therefore, we vacate the sentence on the remaining convictions and remand this case to the trial court for resentencing on those counts.
2. In light of our decision in Division 1, Shaheed's remaining enumeration of error is moot.
Judgment reversed for the offense of driving under the influence to the extent it is less safe to drive. Judgment affirmed as to the other convictions and case remanded for resentencing on those Counts.
Blackburn, P. J., and Miller, J., concur.
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