Lavertu v. State
325 Ga. App. 709
Ga. Ct. App.2014Background
- Lavertu was convicted of DUI per se, DUI less safe, and open container after a traffic stop for suspected impairment.
- A trooper observed Lavertu drift across the centerline, detected nervousness, slurred speech, and limited balance during tests.
- Lavertu declined a portable breath test and could not complete several field sobriety tests; a second trooper testified to impairment indicators and time estimation errors.
- A shoe with a small vodka bottle was found in Lavertu’s pocketbook; Lavertu agreed to a blood test at the station.
- GBI toxicology reported Lavertu’s blood alcohol content at 0.159, well above 0.08, with testimony that at that level she would be a less safe driver.
- The defense argued the verdict on DUI less safe was against the weight of the evidence and that counsel was ineffective for challenges related to the blood sample handling and closing argument.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion on the weight-and-verdict challenge | Lavertu argues the verdict is decidedly against the weight of the evidence. | State contends the trial court properly weighed the evidence and did not err. | No abuse; evidence supported the verdict, and the trial court did not err in denying the new-trial motion. |
| Whether trial counsel was ineffective for handling of blood-sample questions and closing | Lavertu asserts counsel failed to challenge blood handling and to object to prejudicial closing. | State contends counsel acted within trial tactics and closing argument was permissible. | No ineffective assistance; deficient performance not shown and prejudice not demonstrated. |
Key Cases Cited
- Green v. State, 323 Ga. App. 832 (Ga. App. 2013) (standard of review on appeal from criminal conviction; view evidence favorably to verdict)
- Ricketts v. Williams, 242 Ga. 303 (Ga. 1978) (new-trial weight standard and thirteenth juror concept)
- Hartley v. State, 299 Ga. App. 534 (Ga. App. 2009) (trial court must weigh evidence when ruling on new trial under OCGA 5-5-21)
- Merino v. State, 230 Ga. 604 (Ga. 1973) (directed verdict standard comparison for sufficiency review)
- Lawrence v. State, 274 Ga. 794 (Ga. 2002) (trial court’s discretion; cross-examination strategy is trial tactic)
- Hortman v. State, 293 Ga. App. 803 (Ga. App. 2008) (proffer requirement for establishing ineffective assistance in motion-for-new-trial context)
- Lloyd v. State, 280 Ga. 187 (Ga. 2006) (ineffective assistance standard; prejudice required for reversal)
- Reed v. State, 291 Ga. 10 (Ga. 2012) (Prejudice analysis for closing argument statements)
- Metts v. State, 270 Ga. 481 (Ga. 1999) (proper scope of prosecutorial argument regarding witness credibility)