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Polizzotto v. State3/28/2001
blood alcohol content is greater than .10 grams, rather than proving that a person is impaired and therefore a less safe driver. He bases this contention on Deputy Hardwick's statement, made outside of the presence of the jury, that seventy-seven percent of all drivers who have six clues or more during a HGN test have a blood alcohol content of .10 grams or more. This argument is without merit.
In Waits v. State, 232 Ga. App. 357, 360 (3) (501 SE2d 870) (1998), a similar case involving a defendant charged with DUI to the extent that he was a less safe driver, we held that the exact charge at issue was a correct statement of the law, and that a trial court did not err when it gave that charge. Therefore, we reject Polizzotto's argument that the charge was an incorrect statement of the law.
Polizzotto also argues that the charge on HGN somehow violated OCGA § 17-8-57 as an improper expression of the trial judge's opinion of what had been proved. This precise issue was decided adversely to Polizzotto in Waits, where we held that " he charge did not express an opinion, either of [the defendant's] guilt or regarding what had been proved." Id. at 360 (3). Accordingly, we find no error in the court's charge and affirm the conviction.
Judgment affirmed.
Blackburn, C. J., and Pope, P. J., concur.
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