Dаisy L. Mimms was arrested on May 27, 1999, and charged with DUI, criminal trespass, simple assault and interference with government property arising from an incident at a City of Atlanta restaurant. A jury trial was held in the City Court of Atlanta on October 13-14, 1999, and the jury found her guilty of DUI and tres *484 pass, but acquitted her on the remaining counts. Mimms filed a motion for new trial on October 15, 1999, asserting the general grounds, and further asserting that the trial court еrred in excluding the testimony of her proffered expert witness.
Mimms was represented at trial by attorney George Stein, and he filed the motion for new trial on her behalf. The trial court issued a rule nisi sеtting a hearing on the motion for February 24, 2000. On February 16, 2000, attorney Monte Kevin Davis entered an appearance as counsel for Mimms “for the purposes of the Motion for New Trial and any Appeal.” Nothing in Davis’ notice of appearance indicates that he was substituting for Stein as counsel of record. Nor is there anything in the record indicating that Stein ever withdrew as Mimms’ counsel, and, in fact, he represents Mimms, along with Davis, on appeal.
The hearing on Mimms’ motion for new trial was reset eight different times between February and October 2000. Six of these times were due to a lаck of transcript. There is some evidence in the record to indicate that the delay in preparing the transcript was occasioned, at least in part, by the failure of Mimms’ attorney to pay the appropriate fees and deposits.
On September 28, 2000, the hearing was postponed to October 19 to allow Mimms’ attorneys time to review the transcript. On October 19, Davis was unavailable due to a conflict in another court, and attorney Dawn Davis, his wife, appeared in his stead. She announced that the motion hearing would require five hours because thе transcript was “huge.” 1 The trial court rescheduled the hearing for October 26, 2000. Davis’ wife did not mention any conflict and raised no objection to the scheduled date.
On October 26, however, no сounsel appeared on Mimms’ behalf, but Mimms appeared herself to inform the trial court that Davis had filed a leave of absence. The record reflects that a specific notice of leave of absence addressed to the new trial hearing was received by the trial court on the day of the hearing. Mimms tried four different telephone numbers — Davis’ office number, his home number, his pager number and his wife’s pager number — in order to resolve the matter, but was unable to reach Davis or his wife. The trial court denied Mimms’ motion for new trial.
1. Mimms argues that it was error for the trial court to deny her motion without a hearing because her counsel had previously filed a “valid” leave of absence covering the date of the hearing. She asserts that her counsel had filed notices for leave of absence on July 18, 2000, September 19, 2000, and October 9, 2000, covering the period *485 from October 23 through November 5, 2000. She contends that these notices requested less thаn 30 days leave and thus should have been automatically granted under Uniform Superior Court Rule 16.1.
As an initial matter, we note that attorney Stein never requested a leave of absence during the pertinent time period, yet he also failed to appear at the new trial hearing. With regard to Davis, the record shows that he filed the first in a series of notices of leave of absenсe on the day he entered his appearance in the case. 2 In that notice, he requested a series of leave dates, requesting one week in February, two weeks in March, one week in April and three weeks beginning in December, for a total of fifty-two calendar days. He followed the same pattern of leave requests throughout the year, but began including his notices оf leave of absence as discrete paragraphs in conflict letters otherwise addressing a particular week. For example, in his July 18 letter informing the court of trial conflicts during the wеek of July 24, he also includes a paragraph requesting leave for the periods August 21 through September 3, October 23 through November 5 and December 11, 2000, through January 7, 2001, for a total of 56 calendar days. In the same fashion, his September 19 notice covers a total of 60 calendar days, and his October 10 notice covers 46 calendar days.
Mimms asserts that these notices were covered under USCR 16.1 which, in the absence of an objection, automatically grants leave requests of 30 calendar days
or less.
She asserts, therefore, that an automatic leave was in place at the time of the new trial hearing on October 26. But a notice of leave of absence covering more than 30 calendar days, whether all at the same time or over several time periods, falls under USCR 16.2, not USCR 16.1.
State v. Dodge,
Therefore, at the time of thе hearing on the motion for new trial, no valid leave of absence was in place. And Mimms’ attorneys were put on notice of this fact on October 19 when the trial court scheduled the hearing date for October 26 in Dawn Davis’ presence.
A defendant is generally entitled to a hearing on her motion for new trial,
Shockley v. State,
2. Mimms also argues that she should have been granted a new trial because the trial сourt prevented her from presenting the testimony of Dr. Joe Citron, an ophthalmologist, as an expert on alcohol consumption physiology and on drug interactions. Mimms based her claim that Dr. Citron was an expert in these areas on his general medical school training and the fact that he had taken a course on the Intoxilyzer 5000. She asserts on appeal that the doctor’s testimony would have shown that her behavior on the night she was arrested was due to the medication she was taking, and not due to alcohol consumption. Because she was charged with DUI based upon only alcohol consumption, and not upon the consumption of prescription drugs or a combination of the two, she argues that the doctor’s testimony would have allowеd the jury to consider acquitting her on what she terms a technical ground. She now asserts that this was her sole defense at trial.
The state contends that Mimms failed to present sufficient evidence of Dr. Citron’s qualification to testify as an expert in the areas of alcohol consumption physiology and on drug interactions. Moreover, the state argues that Mimms failed to demonstrate the relevance of such testimony at trial. Although she now contends that her sole defense at trial was that her behavior on the night of her arrest could be explained by medication or othеr disorders, there was no proffer at trial that Dr. Citron would testify as to such issues. The closest reference was Mimms’ trial attorney’s statement that his testimony would “explain her behavior.” Moreover, аt trial Mimms denied that her behavior was inappropriate or that there was any impairment in behavior from any source.
The decision whether to admit or exclude expert testimony “lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.” (Punctuation omitted.)
Johnson v. State,
Based upon our review of the record, we find that Mimms has failed to demonstrate a manifest abuse of discretion in the trial court’s decision not to quаlify Dr. Citron as an expert under the circumstances and to exclude his testimony. See
Carlson v. State,
3. In her remaining enumerations of error, Mimms asserts that the city court lacks constitutional existence and jurisdictiоn under the 1983 Georgia Constitution. The state correctly notes that this issue was not raised in the court below and thus cannot be considered by this Court on appeal. See
Pogany v. State,
Judgment affirmed.