 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Duren v. State11/2/2001
Following a jury trial, Curtis M. Duren was convicted of driving under the influence of alcohol to the extent that he was less safe to drive and for violation of the open container law by being in possession of an open container of alcoholic beverage while operating a motor vehicle. On appeal, Duren argues, as his sole enumeration of error, that the evidence was insufficient to support his DUI conviction because the State failed to present sufficient evidence that he was impaired.
On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Duren] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Ryals v. State. See Jackson v. Virginia.
So viewing the evidence, the facts show that on June 23, 2000, DeKalb County Police Officers Gary Thull and Jeffrey Rich were on patrol in a "high incident drug trafficking area." At approximately1:30 a.m., the officers spotted Duren's vehicle, with a tag light out, driving east on Memorial Drive in DeKalb County. The officers stopped Duren for this tag light violation.
Officer Thull testified that as he talked to Duren, he detected a strong smell of an alcoholic beverage. Upon questioning, Duren admitted to having consumed alcohol, stating that he had consumed two beers prior to leaving work. Officer Thull was joined by Officer Rich, who also detected the smell of an alcoholic beverage coming from Duren. Officer Rich described Duren's eyes as "watery."
The officers continued the investigation and Duren exited his vehicle. Officer Matthew Roe came upon the scene and stopped to assist the officers. Officer Roe also observed that Duren's eyes were bloodshot. Because the roadway was on a slope, the only field sobriety tests administered were the horizontal gaze nystagmus (HGN) test and the breath evaluation.
In conducting the HGN test, Officer Roe observed four out of six possible "clues" for nystagmus, or involuntary jerking of the eyes. Officers Thull and Roe testified that during the alco-sensor evaluation they felt that Duren was attempting to give a false reading, or to avoid giving a reading at all, by placing his tongue in front of the mouthpiece. After two or three attempts, Duren finally completed the alco-sensor test which indicated a positive reading for alcohol. At that point, Duren was arrested and read the implied consent warnings.
Duren twice refused to take the State-administered breathalyzer test. A post-arrest inventory of Duren's vehicle produced six bottles of beer, four full, one empty, and one half-empty. At the scene, the officers also discovered a beer bottle cap in Duren's shirt pocket.
OCGA § 40-6-391 (a) (1) prohibits a person from driving a motor vehicle while under the influence of alcohol to the extent that it is less safe for the person to drive. Under this Code section, "impaired driving ability is an element of the crime that the state must prove to obtain a conviction." Kevinezz v. State. It is well settled that police officers may offer opinion evidence concerning a driver's impairment and whether he is less safe to drive. Waits v. State. A police officer's evaluation may be based on a number of different factors:
The results of field sobriety tests, in conjunction with other factors including the physical appearance of the driver, red or glassy eyes, an unsteady stance, the presence of the odor of alcohol, the existence of an accident, and any inculpato
Page 1 2 3 Georgia DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|