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Long v. State12/6/2004
Following her conviction of driving under the influence of alcohol to the extent she was a less safe driver and failure to dim headlights, and the denial of her motion for new trial, Teresa A. Long appeals, arguing that: (1) the evidence was insufficient to support her conviction for less safe driver DUI; and that the trial court erred in (2) refusing to exclude evidence of her refusal to submit to a voluntary field sobriety test, and (3) denying her right to concluding argument at trial. For the reasons which follow, we affirm.
1. Long maintains that the evidence was insufficient for the jury to find her guilty of driving under the influence of alcohol to the extent she was a less safe driver. We disagree.
On appeal from a criminal conviction, the evidence is viewed in a light most favorable to the verdict. We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under the standard of Jackson v. Virginia. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
Ricks v. State.
Viewed in the light most favorable to upholding the verdict, the record shows that, at approximately 10:30 p. m. on the night of July 3, 2003, Deputy Michael Wells saw Long repeatedly flashing her high beam headlights as she drove down the highway toward him. Turning around, Wells pursued her. When Long changed lanes for a left turn, Wells turned on his blue lights, but Long continued in the left lane; Wells then activated his siren, and Long returned to the right lane and pulled into a school parking lot.
When Wells approached Long, he noticed that her eyes were glassy and bloodshot, and he could smell alcohol on her person. Wells asked Long if she had had anything to drink, but she denied that she had. Wells told Long that he could smell alcohol on her breath, but Long insisted that she had had nothing to drink. At this point, Wells asked Long to take an alco-sensor test. Long replied, "No, Sir."
Wells asked Long to turn off the engine and exit the vehicle; Long complied. Wells then asked Long if she would submit to field sobriety tests. Long said, "No." After this refusal, Wells arrested and handcuffed Long. He read her the Implied Consent Warning and then asked if she would submit to a chemical test. Long replied, "No." Long was taken to the detention center, where she again was offered, and chose to refuse, an opportunity to take a chemical test.
We find that the evidence was sufficient to allow a rational trier of fact to find Long guilty of less safe DUI beyond a reasonable doubt.
A conviction under OCGA § 40-6-391 (a) (1) does not require proof that a person actually committed an unsafe act while driving; it only requires sufficient evidence to authorize a finding, beyond a reasonable doubt, that the defendant was operating or in actual physical control of a moving vehicle while under the influence of alcohol to the extent that it was less safe for her to drive. Circumstantial evidence may be sufficient to meet this burden of proof.
(Citation omitted.) Self v. State.
Deputy Wells testified that there was an odor of alcohol on Long's breath and that her eyes were bloodshot. Though this testimony alone would have been insufficient to support her conviction, see, e.g., Bowen v. State ("evidence which only shows that a defendant's eyes were `red and glassy, and he had an odor of (marijuana) about his breath' is insufficient to support a conviction for driving under the influence to the extent that it was less safe for him to drive"), there was additional evidence su
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