Travis v. State
314 Ga. App. 280
Ga. Ct. App.2012Background
- After midnight on Sept. 13, 2009, Travis (age 20) was stopped for speeding in a construction zone with traffic controls and barrels present.
- Trooper detected odor of alcohol, conducted a HGN test and portable alco-sensor tests indicating alcohol.
- Travis initially denied drinking, later admitted having consumed alcohol earlier in the day.
- Travis consented to a state-administered breath test, yielding BAC readings of 0.037 and 0.036.
- Charged with speeding, DUI under 40-6-391(a)(1) and (k)(1), and reckless driving; trial resulted in convictions on DUI and reckless driving, but speeding later sought to be merged.
- The trial court denied motions for new trial; the appellate court vacates the speeding conviction and remands for resentencing, but affirms other convictions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there was sufficient evidence for reckless driving | Travis argues insufficient reckless driving evidence | State argues speeding alone can support reckless driving given conditions | Sufficient evidence; reckless driving affirmed |
| Whether breath test results were admissible given implied-consent notice | Breath test should be excluded due to misleading notice | Notice was substantively accurate overall | No error; breath test results admitted |
| Whether denial of mistrial over alco-sensor numeric result was error | Mistrial warranted due to numeric result read aloud | Curative instruction sufficed; no mistrial necessary | No abuse of discretion; denial affirmed (waived or harmless) |
| Whether the prosecutor’s remark about swaying required mistrial | Comment improperly bolstered credibility of witness | Trial court did not abuse discretion; likely not heard by jury | No reversible error; court did not abuse discretion |
| Whether presumption of sobriety instruction was required for DUI less safe/reckless driving | Request for OCGA 40-6-392(b)(1) instruction should have been given | Presumption not applicable to under-21 DUI or reckless driving counts | Harmless error; no reversal for reckless driving |
| Whether allowing HGN training video was improper | Video prejudicial or inaccurate | Video aided understanding of testimony; admissible as illustration | Not error; within trial court’s discretion |
Key Cases Cited
- In the Interest of R.M., 305 Ga.App. 483 (Ga. Ct. App. 2010) (implied-consent notice accuracy governs admissibility of breath test results)
- Kitchens v. State, 258 Ga.App. 411 (Ga. Ct. App. 2002) (overstatement of legal limit may vitiate notice; distinguishable from present case)
- Jackson v. Virginia, 443 U.S. 307 (U.S. S. Ct. 1979) (sufficiency standard for criminal convictions)
- Eraser v. State, 263 Ga.App. 764 (Ga. Ct. App. 2003) (speeding can support reckless driving; substantial evidence standard)
- State v. Peirce, 257 Ga.App. 623 (Ga. Ct. App. 2002) (implied-consent notice requirement for breath testing)
- Greene v. State, 312 Ga.App. 666 (Ga. Ct. App. 2011) (harmless error review for trial court rulings)
- Simms v. State, 223 Ga.App. 330 (Ga. Ct. App. 1996) (curative instructions regarding inadmissible evidence)
- J.B. Hunt Transport v. Brown, 236 Ga.App. 634 (Ga. Ct. App. 1999) (illustrative materials; minimal authentication requirements)
- Drinkard v. Walker, 281 Ga. 211 (Ga. 2006) (definition of included offenses for sentencing merger)