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Nelson v. State11/15/2001
David L. Nelson appeals from the trial court's denial of his motion to suppress and in limine and motion for new trial after entry of judgment of conviction following the jury's verdict of guilty of driving with an unlawful level of alcohol (OCGA § 40-6-391 (a) (5)) and violation of possession of marijuana (OCGA § 16-13-2 (b)).
Nelson contends that the trial court erred in denying his motion to suppress and in limine regarding the results of his Intoximeter tests and the marijuana found on him after his arrest, arguing that the stop was not authorized under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).
On appeal from a motion to suppress, the evidence is viewed in a light most favorable to upholding the trial court's judgment. The credibility of witnesses and the weight accorded their testimony `rest with the trier of fact, who is under no obligation to believe a witness, even in the absence of contradictory testimony.' (Citation and punctuation omitted.) Anderson v. State, 267 Ga. 116, 118 (2) (475 SE2d 629) (1996). Taylor v. State, 239 Ga. App. 858 (522 SE2d 266) (1999).
Viewed in this light, the record reveals the following: On January 19, 2000, Cobb County Officer Warren was on patrol in a marked vehicle when he encountered the vehicle driven by Nelson. As Officer Warren followed Nelson's vehicle, he noticed the passenger and Nelson engaging in a verbal argument almost "to the point where some punches might be thrown." He based this conclusion on his observation of quick hand movements and head movements of the two. The passenger's hand was only a few inches from Nelson's face and Officer Warren thought blows were about to be struck. The vehicle was also drifting in its lane. Because he was concerned for the safety of the occupants and the general public, Officer Warren initiated a stop of the vehicle. Although, based on his 12 years experience, Officer Warren was also concerned that the drifting might indicate driving under the influence , he acknowledged that this was not the premise for his stop. He approached the vehicle and noticed a strong odor of alcohol as he approached Nelson on the driver's side. He asked Nelson for his driver's license and proof of insurance. Nelson fumbled some, but produced his driver's license. Although he had taken out his insurance card, he put it in his lap until the officer again requested it and asked Nelson to get out of the vehicle. As Nelson got out, he was unsteady on his feet and his speech was mumbled.
Officer Warren then conducted field sobriety tests, including the alphabet, walk and turn, one legged stand, and horizontal gaze nystagmus tests. Nelson forgot various letters and was unable to complete the alphabet; was initially unable to keep his balance on the walk and turn; and could not keep his balance on the one legged stand. He had "extreme nystagmus," and tested positive on the alcosensor. Nelson was placed under arrest.
A ten-year-old boy was found in the back seat, the son of the front seat passenger. Upon inventorying the vehicle, a smoking pipe containing suspected marijuana and a bag of suspected marijuana were found on the driver's side. Also, upon searching Nelson incident to his arrest, Officer Warren found a suspected marijuana "joint" in Nelson's shirt pocket.
Nelson registered .100 and .103 on the Intoximeter 5000 and the suspected substances tested as marijuana.
1. We consider first the issue of denial of Nelson's motion to suppress and in limine, seeking to exclude all items obtained in the inventory search and search of Nelson, as well as the Intoximeter 5000 results and the test results on the marijuana.
Nelson's argument is t
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