Pough v. State
325 Ga. App. 547
Ga. Ct. App.2014Background
- Pough was convicted of DUI less safe (Count 1) and DUI per se (Count 2) based on the same conduct.
- At sentencing, the trial court merged Count 1 and Count 2 but did not specify which merged or on which count it sentenced.
- The on-scene facts showed Pough standing outside a running Jeep with the engine on after stopping to urinate, with a strong odor of alcohol and impairment.
- Officer Cyphers observed impairment indicators and an alcohol reading; Pough admitted drinking earlier that night and consented to an intoxilyzer test showing BAC 0.157 and 0.160.
- The appellate court vacated the DUI per se conviction and affirmed the DUI less safe conviction, citing that two DUIs based on the same conduct can be treated variably when sentencing is unclear.
- The court held that the evidence supported Pough’s DUI less safe conviction and discussed whether the driving element could be shown circumstantially.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Two DUI counts based on same conduct can yield two convictions? | State argued multiple counts may be valid; sentencing could apply to both. | Pough argued the two counts reflect the same conduct and should not both stand. | Count 2 vacated; Count 1 affirmed. |
| Sufficiency of evidence for DUI less safe given circumstantial driving proof | State contends driving was shown circumstantially. | Pough argued lack of direct driving evidence requires acquittal. | Sufficient evidence supported DUI less safe. |
| Whether sentencing ambiguity requires remand or count vacatur | Not explicitly argued in detail on remand. | N/A | Court vacated one conviction; did not remand; affirmed the other. |
Key Cases Cited
- Jaffray v. State, 306 Ga. App. 469 (Ga. App. 2010) (driving under the influence to the extent that it is less safe can be proven circumstantially; three elements test)
- Dechant v. State, 294 Ga. App. 23 (Ga. App. 2008) (jury may disbelieve self-serving denials when contradicted by other evidence)
- Stephens v. State, 271 Ga. App. 634 (Ga. App. 2005) (circumstantial evidence may establish driving and impairment beyond reasonable doubt)