Matthew J. Lewis appeals his conviction of driving under the in fluence of alcohol (Count 1), driving with an open containe (Count 2), driving with an expired license (Count 3), and drivin with no insurance (Count 4). He pled guilty to Counts 2 and 3 an was convicted on a jury verdict of Counts 1 and 4. Held:
*831 1. The trial court did not err in denying appellant’s motion for directed verdict; the evidence was legally sufficient to support appellant’s conviction of driving under the influence of alcohol (Count 1). Appellant’s first and second enumerations of error are without merit.
“OCGA § 40-6-391 (a) (1) makes it unlawful for a person to ‘drive or be in actual physical control of any moving vehicle while: Under the influence of alcohol to the extent that it is less safe for the person to drive. . . .’ There is no requirement that the person actually commit an unsafe act.”
Moss v. State,
The police were investigating a male juvenile on a bicycle who vas loitering at a Big H store; the store had been closed for some ;ime and there were no lights on. While the investigation was continuing, appellant pulled up to the store’s gas pump in his Maverick au-;omobile. The arresting officer approached and asked appellant what re was doing there; appellant replied that he wanted to get gasoline. While asking to see appellant’s license and proof of insurance card, ;he officer noticed an open container of Keystone beer sitting beside ippellant. Appellant had a strong odor of alcoholic beverage upon his >reath and body. Appellant was asked to get out of the vehicle. Both ippellant’s driver’s license and insurance card had expired. Appellant vas given an alphabet field sobriety test; he started to recite the al-)habet but “around the letter ‘M’ he started losing his place, started ransposing in the middle of the letters.” Appellant took the alphabet est twice; he could not complete it successfully. When asked to take i “heel to toe test,” appellant became kind of defiant and refused to «operate. At that point, appellant appeared to become frustrated md “just leaned back against his car” and would not do anything ¡lse. Appellant was then placed under arrest for DUI. Prior to his irrest appellant exhibited the following additional manifestations of >eing under the influence of alcohol: watery eyes, paleness of face, nd slurred speech. Two unopened cans of Keystone beer subse-[uently were found in the car in addition to the one open can. At the ounty jail, appellant refused to submit to intoximeter testing after ieing given a second implied consent warning. At trial the arresting fficer opined, based on the evidence of appellant’s manifestations of *832 alcohol, his performance and nonperformance of certain field sobriety evaluations, and his refusal to submit to intoximeter breath testing, that appellant was a less safe driver. The arresting officer, who had approximately ten years service, had received training at the police academy regarding sobriety testing and had received training based on the National Highway Traffic Safety Administration Manual. The officer also testified he found it strange that appellant would pull up to the gas pump of a closed store that was “pretty dark.”
A police officer may give opinion testimony as to the state of sobriety of a DUI suspect and whether appellant was under the influence to the extent it made him less safe to drive.
Church v. State,
2. The trial court sustained the State’s objection to the following two questions posed by appellant’s counsel during cross-examinatior of the arresting officer: Whether probable cause is a far cry from proo: beyond a reasonable doubt and “it is your understanding, is it not that the facts necessary to establish probable cause are much less than the facts necessary to convict a person beyond a reasonably doubt?” The trial court did not err in its rulings. The trial court exerl cises discretion in determining the scope of a defendant’s thorouglfi and sifting cross-examination. See
Jackson v. State,
We also note appellant argued to the jury that the facts necessary to sustain an arrest based on probable cause were “nowhere near proof beyond a reasonable doubt” necessary for criminal conviction, and he was afforded great latitude in presenting his version of the reasonable doubt concept and informing the jury of their duty to acquit appellant if they had a reasonable doubt in their minds as to appellant’s guilt.
3. Appellant’s contention that the trial court erred in refusing to instruct the jury on the difference between the evidence necessary for probable cause to make an arrest and that required for conviction is without merit.
Examining the charges in their totality
(Hambrick v. State,
Moreover, appellant did not contend at trial that there was a lack >f probable cause for appellant’s arrest. A fair risk therefore would ixist that a charge which merely distinguished “between the evidence lecessary for probable cause to make an arrest, and the evidence re-luired for conviction” would confuse the jury. A trial court does not rr when it refuses to give a confusing or misleading instruction.
Jones v. State,
Judgment affirmed.