688 S.E.2d 395 | Ga. Ct. App. | 2009
Following a jury trial, Joseph Blankenship appeals his conviction for DUI (less safe)
1. When reviewing a defendant’s challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. Short v. State.
So viewed, the evidence shows that on August 30, 2008, Blankenship, who was driving a vehicle with no passengers, was stopped at a duly-authorized police roadblock and asked for his driver’s license and proof of insurance. When he handed these items to the officer, the officer smelled a strong odor of alcohol on Blankenship’s breath and saw that Blankenship had watery, bloodshot eyes, which led the officer to ask if Blankenship had been drinking; Blankenship admitted that he had.
The officer asked Blankenship to exit the vehicle, and when Blankenship did, he was unsteady on his feet and had to lean against the vehicle to balance himself. After obtaining Blankenship’s consent
Based on this evidence, a jury found Blankenship guilty of DUI (less safe) and possession of marijuana. He challenges the sufficiency of the evidence of each crime.
(a) DUI (less safe). OCGA § 40-6-391 (a) (1) provides that “[a] person shall not drive or be in actual physical control of any moving vehicle while . . . [ujnder the influence of alcohol to the extent that it is less safe for the person to drive. ...” Here, the experienced officer, who was trained in administering field sobriety tests, opined that Blankenship was impaired to the extent it was less safe for him to drive based on the officer’s observations that (i) a strong odor of alcohol exuded from Blankenship’s breath, (ii) Blankenship had watery, bloodshot eyes, (iii) Blankenship admitted to drinking beer recently, (iv) Blankenship was unsteady on his feet when he exited the vehicle, and (v) Blankenship failed all three field sobriety tests administered by the officer. Moreover, after proper notice, Blankenship declined the officer’s request for state-administered chemical tests of his blood and breath. See Alewine v. State
(b) Possession of marijuana. OCGA § 16-13-30 (j) (1) provides: “It is unlawful for any person to possess . . . marijuana.” Here, the officer found marijuana in a small bottle in the center console of the vehicle Blankenship was driving alone. “Absent contrary evidence, the driver of an automobile is presumed to have possession and control of drugs found in the vehicle.” (Punctuation omitted.) Arellano v. State.
2. Blankenship argues that the trial court erred in denying his motion to suppress (i) the evidence obtained after the officer asked him to exit the vehicle and to undergo the field sobriety tests, and (ii) the contraband evidence found in the inventory search of the vehicle. As to the first set of evidence, he claims that the officer had no reasonable articulable suspicion to conduct a DUI investigation. As to the evidence found in the inventory search after his arrest, he claims that the officer lacked probable cause to place him under arrest. Both of these claims fail.
When reviewing a trial court’s ruling on a motion to suppress, we apply the “any evidence” standard, which means that we sustain all of the trial court’s findings of fact that are supported by any evidence. We construe all evidence presented in favor of the trial court’s findings and judgment.
(Punctuation omitted.) Warner v. State.
(a) Reasonable, articulable suspicion to conduct the DUI investigation. Before the officer asked Blankenship to exit the vehicle so as to conduct a DUI investigation (including field sobriety tests), the officer had smelled a strong odor of alcohol on Blankenship’s breath and had observed Blankenship’s watery, bloodshot eyes. “The alcoholic smell provided the officer reasonable grounds to conduct a second-tier investigatory detention.” Whitmore v. State.
(b) Probable cause to arrest Blankenship for DUI. At the time the officer arrested Blankenship for DUI (less safe), the officer had observed that (i) a strong odor of alcohol exuded from Blankenship’s breath, (ii) Blankenship had watery, bloodshot eyes, (iii) Blankenship
Some evidence supported the trial court’s findings underlying its denial of both aspects of Blankenship’s motion to suppress. The court did not err.
3. Blankenship contends that the trial court erred in denying his challenges to strike four jurors for cause. Each of these four jurors, in response to questions from Blankenship, had indicated that he or she felt that a defendant should testify in order to prove his innocence. In light of the rehabilitation of each of these jurors, we hold that the trial court did not abuse its discretion in denying the challenges for cause.
Whether to strike a juror for cause lies within the sound discretion of the trial court, and a trial court is not obligated to strike a juror for cause in every instance where the potential juror expresses doubts about his or her impartiality or reservations about his or her ability to set aside personal experiences. The trial judge is uniquely positioned to observe a potential juror’s demeanor and thereby to evaluate his or her capacity to render an impartial verdict.
(Citations and punctuation omitted.) Wilson v. State.
Here, no evidence showed that the jurors in question had formed a fixed or definite opinion regarding the guilt or innocence of
4. Blankenship argues that the trial court erred in giving certain instructions to the jury. Yet after the jury was charged, Blankenship specifically stated that he had no objections to the charge. OCGA § 17-8-58 (b)
Although OCGA § 17-8-58 (b) does allow a criminal defendant to nevertheless challenge on appeal an unobjected-to charge that is “plain error which affects substantial rights of the parties,” none of the charges challenged here falls into such category, nor does Blankenship argue that any does. Indeed, excepting one, Blankenship requested these very charges in his requests to charge submitted to the court. “[T]he act of requesting an instruction in the trial court constitutes a specific waiver of the right to enumerate it as error on appeal,” Fielding v. State
With regard to the one instruction not specifically requested by Blankenship, that instruction informed the jury that, in its discretion, it could infer from Blankenship’s refusal to submit to state-administered chemical tests of his blood and breath that Blankenship would have tested positive for alcohol. As discussed earlier, OCGA § 40-5-67.1 (b) (2) authorizes such an instruction. See Alewine, supra, 273 Ga. App. at 631 (1). There was certainly no
Judgment affirmed.
OCGA § 40-6-391 (a) (1).
OCGA § 16-13-30 (j) (1).
Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).
Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
Alewine v. State, 273 Ga. App. 629, 631 (1) (616 SE2d 472) (2005).
Arellano v. State, 289 Ga. App. 148, 150 (1) (a) (656 SE2d 264) (2008).
Bryson v. State, 293 Ga. App. 392, 394-395 (2) (667 SE2d 170) (2008).
Warner v. State, 299 Ga. App. 56, 58 (1) (681 SE2d 624) (2009).
State v. Starks, 281 Ga. App. 15, 15 (635 SE2d 327) (2006).
Whitmore v. State, 289 Ga. App. 107, 109 (657 SE2d 1) (2008).
Peterson v. State, 294 Ga. App. 128, 130 (1) (668 SE2d 544) (2008).
McClain v. State, 226 Ga. App. 714, 718 (1) (487 SE2d 471) (1997).
Monahan v. State, 292 Ga. App. 655, 660 (2) (665 SE2d 387) (2008).
Sultan v. State, 289 Ga. App. 405, 408-409 (2) (657 SE2d 311) (2008).
Wilson v. State, 271 Ga. 811, 815-816 (5) (a) (525 SE2d 339) (1999), overruled on other grounds, O’Kelley v. State, 284 Ga. 758, 768 (3) (670 SE2d 388) (2008).
Ros v. State, 279 Ga. 604, 606 (4) (619 SE2d 644) (2005).
Daniel v. State, 296 Ga. App. 513, 522 (6) (675 SE2d 472) (2009).
Dixon v. State, 285 Ga. 312, 316-317 (3) (677 SE2d 76) (2009).
The trial of this case occurred in January 2009. Thus, this issue is controlled by OCGA § 17-8-58, which became effective July 1, 2007. Ga. L. 2007, p. 595, §§ 1, 5.
Metz v. State, 284 Ga. 614, 619-620 (5) (669 SE2d 121) (2008).
Johnson v. State, 293 Ga. App. 294, 296 (2) (666 SE2d 635) (2008).
Fielding v. State, 299 Ga. App. 341, 343-344 (2) (682 SE2d 675) (2009).
Courrier v. State, 270 Ga. App. 622, 625-626 (2) (607 SE2d 221) (2004).