Black v. State
309 Ga. App. 880
Ga. Ct. App.2011Background
- Black was stopped after his vehicle swerved and failed to maintain its lane; officers smelled alcohol, observed bloodshot eyes, slurred speech, and Black failed field sobriety tests.
- An alco-sensor breath test was positive; Black was arrested and later took a State breath test on the Intoxilyzer 5000 showing 0.124 and 0.127 g/dL.
- Black was charged with DUI less safe, DUI per se, failure to maintain lane, and disorderly conduct; the DUI per se count was later merged into DUI less safe.
- Black argued discovery violations due to the State not timely producing a DUI arrest report and allegedly related HGN information.
- The trial court ruled no discovery violation and gave a jury charge distinguishing alco-sensor results from chemical testing.
- On appeal, the Georgia Court of Appeals affirmed, finding no reversible error and noting merger rendered the DUI per se count void.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| whether there was a discovery violation | Black; failure to produce DUI arrest report | Black; claim Brady material not provided timely | No reversible error; court presumes findings supported |
| whether the jury charge improperly expressed opinion about evidence | Black; court commented on alco-sensor vs chemical test | Black; not a violation of OCGA § 17-8-57 | No error; clarified law without expressing improper opinion |
| whether proper foundation was laid for admitting Intoxilyzer 5000 results | Black; foundation insufficient | Black; foundation adequate | Not reached due to merger; any error harmless |
| whether the DUI per se charge was properly stated during jury charge | Black; misstatement of allegations | Black; charge proper | Not reached due to merger; harmless error |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (U.S. Supreme Court 1979) (sufficiency standard for evidence review)
- McKinney v. State, 293 Ga.App. 419 (Ga. App. 2008) (record sufficiency on appeal when parts of record omitted)
- Capps v. State, 273 Ga.App. 696 (Ga. App. 2005) (explanation of juror instruction standards)
- Grimes v. State, 245 Ga.App. 277 (Ga. App. 2000) (clarification of admissibility and court comments)
- Daniel v. State, 298 Ga.App. 245 (Ga. App. 2009) (merger renders one conviction void; harmless error rule)
- Harrelson v. State, 287 Ga.App. 664 (Ga. App. 2007) (harmless error doctrine when merged conviction)