Brown v. StateBrown v. State
A Newton County jury found Larry Brown guilty of driving under the influence of alcohol,
Viewed in the light most favorable to the jury’s verdict, 2 the record reveals the following. At about 10:50 p.m. on July 15, 2006, a Newton County sheriffs deputy was sitting in his parked patrol car on a residential road. Before he saw Brown’s car coming down the road, he heard it. He heard music emanating from the car when it was about three quarters of a mile away. The deputy stopped Brown for violating the sound volume limits for devices within a motor vehicle. As the deputy was telling Brown why he stopped him, he smelled the odor of an alcoholic beverage coming from Brown’s person and noticed that Brown’s eyes were blood-shot and glassy. He asked Brown to step out of the car, and Brown “rolled” out of the car with some difficulty. After he had gotten out of the car, Brown was “uneasy about himself,” stumbled, and almost fell. The deputy patted Brown’s clothing for weapons and discovered a bag of mari *273 juana in his pants pocket.
The deputy arrested Brown for possession of marijuana and driving under the influence, read him implied consent warnings, and took him to jail. Brown consented to an Intoxilyzer test, which yielded test results showing blood-alcohol concentrations of 0.151 and 0.153 grams. The test results were obtained within an hour of Brown’s initial traffic stop. At trial, Brown admitted possessing the 2.2 grams of marijuana found on his person.
1. Brown contends the trial court erred in denying his motion to suppress his blood-alcohol test results because the deputy lacked probable cause to arrest him for DUI. In support of this argument, Brown notes that the deputy observed no moving violations, failed to conduct field sobriety tests, and failed to ask whether Brown had been drinking that night. Brown contends his arrest was based solely on the discovery of the marijuana. We disagree.
When reviewing a trial court’s decision on a motion to suppress, our responsibility is to ensure that there was a substantial basis for the decision.
Morgan v. State,
It is undisputed that the deputy properly stopped Brown for violating the sound volume limits for devices within motor vehicles.
3
It is immaterial that the deputy witnessed no moving violation or an unsafe act prior to the traffic stop. See, e.g.,
State v. Smith,
*274 Further, that the deputy failed to conduct field sobriety tests or to question Brown about his alcohol consumption does not necessarily defeat a finding of probable cause to arrest for DUI. What matters is what the deputy observed and reasonably believed. As we have explained:
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. . . . [Sufficient probable cause to conduct a DUI arrest only requires that an officer have knowledge that a suspect was actually in physical control of a moving vehicle while under the influence of alcohol to a degree which renders him incapable of driving safely.
(Footnotes omitted.)
Gregoire v. State,
Here, the deputy observed that Brown had trouble getting out of his car, that he was unsteady on his feet and almost fell, that his eyes were glassy and blood-shot, that his body and breath smelled of an alcoholic beverage, that he had marijuana (an illegal intoxicant) in his possession, and that he was driving at night while playing his music loud enough to be heard three quarters of a mile away. Under the totality of the circumstances, the officer had probable cause to believe Brown was actually in physical control of a moving vehicle while under the influence of alcohol (and possibly marijuana) to a degree which rendered him incapable of driving safely. See
State v. Burke,
2. Brown contends the evidence was insufficient to support his convictions. With respect to his convictions for possession of marijuana or violating the sound volume limits, he makes no legal argument, he cites no legal authority, and he makes no reference to the record. Therefore, with respect to these convictions, this claim of error is deemed abandoned. See Court of Appeals Rule 25 (c) (2)
*275
(“Any enumeration of error which is not supported in the brief by citation of authority or argument may be deemed abandoned.”);
Walker-Carter v. State,
With respect to his conviction for driving under the influence, Brown asserts that, if his blood-alcohol test results had been suppressed, the evidence remaining would be insufficient to support his conviction. Given our holding in Division 1, however, the jury properly considered the test results, evidence which amply supports Brown’s conviction for driving with an alcohol concentration greater than 0.08 grams in violation of
Judgment affirmed.
Notes
The jury also found Brown guilty of violating
Jackson v. Virginia,
An officer is authorized to stop a vehicle if he or she observes the commission of a traffic offense, even if it is not a moving violation.
Hines v. State,