Green v. State
323 Ga. App. 832
Ga. Ct. App.2013Background
- Defendant Robert Anthony Green was convicted after a bench trial of DUI-per-se (OCGA § 40-6-391(a)(5)) and impeding traffic (OCGA § 40-6-184(a)(1)); he appealed the denial of his motion for new trial.
- Officers found Green at ~3:00 a.m. slumped in the driver’s seat of a running vehicle stopped in a travel lane with two flat tires; flashers on; sole occupant.
- Officers observed slurred speech, red eyes, unsteadiness, odor of alcohol; Green failed some field sobriety tests and admitted drinking earlier.
- State breath tests (Intoxilyzer 5000) produced BACs of 0.158 and 0.164 (within three hours).
- Trial court convicted; on appeal the court held the evidence supported the DUI-per-se conviction but reversed the impeding-traffic conviction and reversed the DUI conviction because the State failed to prove Green knowingly, voluntarily, and intelligently waived his right to jury trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for DUI-per-se | Evidence insufficient to prove actual physical control/driving | Green was found in driver’s seat, signs of intoxication, BAC > .08 within 3 hours; circumstantial evidence supports driving | Conviction for DUI-per-se supported by sufficient evidence |
| Sufficiency of evidence for impeding traffic | Evidence shows vehicle stopped in travel lane; impeding charge valid | No evidence traffic was impeded before officers arrived; flats and time made stop reasonable | Reversed: insufficient evidence to sustain impeding-traffic conviction |
| Validity of jury-trial waiver | Waiver not shown on record; must be personal, knowing, voluntary, intelligent | State relied on counsel’s competence, defendant’s silence, and court’s stated arraignment habit | Reversed DUI conviction because State failed to prove a knowing, voluntary, intelligent waiver; retrial on DUI allowed |
| Ineffective assistance of counsel | Counsel ineffective (argued on appeal) | Trial court record inadequate to resolve; State’s errors were dispositive | Court did not reach ineffective-assistance claim (not addressed) |
Key Cases Cited
- Fuller v. State, 313 Ga. App. 759 (establishing standard of review on appeal from criminal conviction)
- Stephens v. State, 271 Ga. App. 634 (circumstantial evidence can prove driving and actual physical control)
- Dorris v. State, 291 Ga. App. 716 (upholding DUI-per-se conviction on circumstantial evidence and high BAC)
- Jaffray v. State, 306 Ga. App. 469 (verdict may stand despite contradicted evidence if some evidence supports each element)
- Raulerson v. State, 223 Ga. App. 556 (cannot impede traffic when no traffic exists to be impeded)
- Darwicki v. State, 291 Ga. App. 239 (same proposition regarding traffic impedance)
- Watson v. State, 274 Ga. 689 (defendant must personally, knowingly, voluntarily, intelligently waive jury trial)
- Balbosa v. State, 275 Ga. 574 (trial counsel’s waiver shows only voluntariness, not necessarily knowing/intelligent waiver by defendant)
- Ealey v. State, 310 Ga. App. 893 (trial court must conduct on-the-record inquiry to ensure valid jury-waiver)
- Allison v. State, 288 Ga. App. 482 (State bears burden to show waiver was knowing and intelligent; extrinsic evidence allowed but must be specific)
- Jones v. State, 294 Ga. App. 169 (discussions with counsel alone insufficient to establish knowing and intelligent waiver)