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Diaz v. State7/27/2000
Sm-044C
Kerwin Diaz was found guilty in a bench trial of driving under the influence of alcohol to the extent that he was a less safe driver, failing to maintain lane, and driving without a license. He appeals his conviction and sentence, contending that the evidence was insufficient to find him guilty of DUI and that the trial court erred in admitting certain evidence, in sentencing him, and in finding him guilty of violating OCGA § 40-5-20. We find no merit in these contentions, and we affirm the judgment.
The record shows that Gwinnett County Police Officer Gale Higginbotham Murray was on duty when she observed Diaz's vehicle make a turn into the center lane of a three-lane highway without using a turn signal, then twice cross partially into the left lane and re-enter the center lane. Murray initiated a traffic stop, and when she approached the open driver's side window, she noticed a strong odor of alcohol. When requested to show a driver's license and proof of insurance, Diaz produced a Tennessee driver's license and insurance card. He told Murray that he had not had anything to drink and that he had lived in Georgia about a month and a half.
Murray checked Diaz's license and found it valid. She then requested that Diaz step out and perform various field sobriety tests, which he did. When Diaz left the car, Murray still smelled a moderate odor of alcohol about him. She again questioned him about his drinking, and he again told her he had "nothing" to drink.
Diaz exhibited all six clues on the horizontal gaze nystagmus test, had difficulty maintaining his balance on the nine-step walk and turn test, and swayed back and forth twice on the one-leg stand. The alco- sensor test was positive for the presence of alcohol. Based on these field tests and Murray's experience, training, and observations, she formed the opinion that Diaz was under the influence of alcohol to the extent that he was a less-safe driver. Diaz was arrested and read his implied consent rights. Diaz agreed to submit to a state-administered breath test, and he was transported to the Gwinnett County Jail, where two tests were administered. Diaz's blood alcohol level was 0.090 on the first test and 0.089 on the second test.
Diaz testified in his own defense. He admitted having three or four 12-ounce beers at a nightclub. He also admitted he had been living in Georgia for five years without obtaining a Georgia driver's license.
1. Diaz contends the evidence was insufficient to support his conviction for DUI to the extent he was a less safe driver. On the contrary, Diaz's conviction on this count was more than amply supported.
On appeal the evidence must be viewed in the light most favorable to support the verdict, and [the defendant] 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. (Citations and footnote omitted.) Byrd v. State, 240 Ga. App. 354 (523 SE2d 578) (1999).
If a driver's blood alcohol level is 0.08 grams or more, the trier of fact may infer that the driver is under the influence of alcohol. Stepic v. State, 226 Ga. App. 734, 735-736 (1) (487 SE2d 643) (1997). Here, in addition, when viewed in the light most favorable to the verdict, the evidence presented at trial showed that Officer Murray was trained and experienced in DUI detection. She observed Diaz driving erratically, and she detected the odor of alcohol on him. Diaz lied to the officer about his drinking and about how lo
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