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Dotson v. State11/17/2005
BLACKBURN, P. J., MILLER and BERNES, JJ.
Following a jury trial, Ulysses Dotson, Jr. appeals his convictions for driving under the influence to the extent he was less safe ("DUI"), driving on the wrong side of the road, and reckless driving, contending that: (1) the evidence was not sufficient to convict him of DUI or of driving on the wrong side of the road, and (2) the trial court erred in allowing hearsay testimony during a hearing on Dotson's motion to suppress. We disagree and affirm.
1. (a) Dotson contends that the evidence was not sufficient to convict him of DUI, in violation of OCGA § 40-6-391(a) (1). We disagree.
The standard of review for sufficiency of the evidence is set out in Jackson v. Virginia. The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. In addition, appellant no longer enjoys a presumption of innocence. An appellate court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses.
(Punctuation omitted.) Taylor v. State.
So viewed, the record shows that as Dotson drove down a neighborhood street, he was weaving erratically and collided with a car parked on the opposite side of the street from his lane of travel. Upon getting out of his car, Dotson was confused, extremely talkative, and unstable on his feet. A witness who saw the collision and his behavior testified that she believed Dotson was intoxicated. After being called to the scene, the responding police officer spoke to Dotson, smelled an odor of alcohol about Dotson's breath and person, and observed that Dotson had slurred speech. After Dotson refused to take a breath test , the officer placed Dotson under arrest and transported Dotson to a hospital for treatment of injuries he received during the collision. At the hospital, Dotson refused a second breath test.
OCGA § 40-6-391 (a) (1) provides: "A person shall not drive or be in actual physical control of any moving vehicle while: (1) Under the influence of alcohol to the extent that it is less safe for the person to drive." Viewing the facts in the light most favorable to the jury's verdict, we hold that the evidence was sufficient to authorize the jury to find Dotson guilty of DUI. See Pecina v. State.
(b) Dotson also contends that the evidence was insufficient to support his conviction of driving on the wrong side of the road. We disagree.
OCGA § 40-6-40 provides, in relevant part:
(a) Upon all roadways of sufficient width, a vehicle shall be driven upon the right half of the roadway, except as follows: . . . (2) When an obstruction exists making it necessary to drive to the left of the center of the highway, provided that any person so doing shall yield the right of way to all vehicles traveling in the proper direction upon the unobstructed portion of the highway within such a distance as to constitute an immediate hazard.
Dotson testified at trial that he swerved to avoid another car when the collision occurred, and he argued that this obstruction made it necessary to cross the centerline. However, when questioned on cross- examination, Dotson testified that he never saw or spoke to the other driver, who "disappeared." Moreover, an eyewitness disputed Dotson's tesimony, testifying that no other vehicle caused Dotson to swerve. The jury, as the arbiter of fact, was entitled to disbelieve Dotson and to believe the eyewitness. See Harvey v. State. Therefore, in light of the evidence that Dotson drove o
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