Following a jury trial, Sandra Armour was convicted of driving under the combined influence of marijuana and alprazolam to the extent that it was less safe for her to drive.
1. Armour contends that the trial court erred in denying her motion to suppress her statements, test results, and other evidence stemming from her arrest because the arresting officer lacked probable cause to conclude that she had been driving under the influence of drugs to the extent it was less safe to drive (“DUI-less safe”). We disagree.
In reviewing a trial court’s decision on a motion to suppress, we construe the evidence most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility of the witnesses are adopted unless they are clearly erroneous. Further, because the trial court is the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if any evidence supports them. However, when evidence is uncontroverted and no question of witness credibility is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.2
The officer traveled to the hospital, where he spoke with Armour, who was not visibly injured. He saw that her eyes were bloodshot and dilated. According to the officer, dilated pupils may indicate marijuana use. He asked Armour “about the medication and the marijuana.” Armour told him that she used marijuana every evening in place of the Xanax to calm her nerves. She denied having smoked marijuana that day, but admitted to having smoked marijuana the previous evening.
At the officer’s request, Armour agreed to undergo a “Romberg” field sobriety test, during which the officer looked for involuntary eye flutter and “internal clock.” He concluded that Armour’s internal clock was slow and that she exhibited eyelid tremors. Based on his training and experience, the officer concluded that Armour was an impaired driver and placed her under arrest. After he read Armour the implied consent warning, she agreed to a blood test, and after a nurse drew Armour’s blood, the officer transportedArmour to the jail.
Armour argues that the officer lacked probable cause to arrest her for DUI-less safe. We disagree. “The facts necessary to establish probable cause for arrest are much less than those required to prove guilt beyond a reasonable doubt at trial; the test merely requires a probability — less than a certainty but more than a mere suspicion or possibility.”
OCGA § 40-6-391 (a) (2) provides that a person shall not drive a moving vehicle while “[u]nder the influence of any drug to the extent that it is less safe for the person to drive.” A driver need not actually
2. Armour contends that the trial court erred by improperly commenting on the evidence in the presence of the jury. We disagree.
At trial, the jury heard testimony of a second police officer who evaluated Armour after she had been transported by the arresting officer to the jail. During defense counsel’s cross-examination of the second officer, counsel began a question, “was the fact that [Armour] was at a hospital waiting for treatment, had not received treatment —” but before he could finish, the prosecutor objected that no evidence had been presented that Armour did not receive the treatment that she needed or that she was waiting for treatment. The defense
My recollection of the evidence was that [the arresting officer] obtained authorization from the nurse to segregate [Armour] from the other witnesses and before he removed her from the hospital, there was inquiry with this nurse after she had administered — had withdrawn the blood about whether or not she could be released is my recollection of the testimony. Whether that is erroneous or not, we can certainly play back the tape, if you wish ... but based on my recollection ... I would sustain the objection that’s been made ....
Armour argues that the trial court’s statements violate the rule that “[i]t is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.”
3. Last, Armour claims that the trial court erred in failing to immediately set an appeal bond, thereby requiring her to spend eight days in custody, notwithstanding that immediately following sentencing she filed a motion for new trial and moved for a supersedeas bond pending appeal.
Judgment affirmed.
Notes
OCGA§ 40-6-391 (a) (4).
Hammont v. State,
Brown v. State,
Campbell v. State,
See Moss v. State,
Handley v. State,
See, e.g., Martin v. State,
See Wilson v. State,
See Parker v. State,
See Campbell, supra (probable cause' existed for appellant’s arrest for DUI-less safe where he “was observed speeding, admitted to smoking marijuana, had the smell of marijuana on his person, had bloodshot eyes, and exhibited multiple clues of impairment during several of the field sobriety tests”); Davis v. State,
OCGA§ 17-8-57.
See Bolden v. State,
Bolden, supra (citation and punctuation omitted). See Saladine v. State,
See Bolden, supra; Saladine, supra.
Armour was convicted on February 24, 2010, and her motion for supersedeas bond was granted on March 4, 2010.
We note that Armour misplaces her reliance on OCGA § 17-6-1 (b) (1), which provides, among other things, that a person shall not be refused bail during an appeal of a misdemeanor conviction. OCGA § 17-6-1 (b) (1) is subject to OCGA§ 17-6-1 (g), which provides in applicable part that “[t]he granting of an appeal bond to a person who has been convicted of... any offense set forth in Code Section 40-6-391, shall be in the discretion of the convicting court.”
See Clark v. State,