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Avans v. State9/17/2001
transporting a prisoner. The officer also noted that Avans drove so far across the "fog line" on the roadway that the officer thought he had struck a guard rail. He could not stop Avans because of his prisoner, so he requested another officer to make the stop. The officer who made the stop testified that as he approached Avan, Avan rolled down his window, and the officer smelled "a strong smell of alcoholic beverage." Avans admitted having three or four beers that day, and although he was "very calm and cooperative," he failed two out of three field sobriety tests. Avans was placed under arrest and advised of his implied consent rights. He agreed to take a breath test, and the readings on two Intoxylizer 5000 tests administered at the Dade County Sheriff's Department were .157 and .149, both substantially over the legal blood alcohol level.
Avans testified in his own behalf, admitting he had been drinking with friends at a bowling alley after work. He did not remember weaving or almost hitting the guard rail, but said he could have been "messing with" his radio. He testified he did not have the tolerance his friends had for alcohol, blaming it on his Cherokee Indian ancestry, but he admitted driving after consuming three or four beers. At sentencing, the State introduced evidence that Avans had three prior convictions for driving under the influence . In light of this evidence, it is unlikely that a plea offer could have been negotiated that would have changed the outcome. Even the trial court noted at the hearing on Avans's motion for new trial that both trial counsel and Avans were aware that this was Avans's "fourth DUI. I mean, there just comes a point in time when all you've got is presumption of innocence and burden of proof and [counsel] knew it and [Avans] knew it and they went to trial with that and lost." Knowing this, the trial court did not err in denying Avan's motion for new trial on the ground that Avans's counsel was ineffective.
Judgment affirmed.
Barnes and Phipps, JJ., concur.
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