Fоllowing a trial by jury, the appellant, Joseph Shelton, was convicted of operating a motor vehicle under the influence of alcohol, in violation of OCGA § 40-6-391 (a) (1). 1 His motion for new trial was subsequently denied, and this appeal followed.
The evidence viewed in the light most favorable tо the jury’s verdict shows that at approximately 10:50 p.m. on January 6, 1992, Shelton was seen driving a Chevrolet Camaro in a parking lot of a
When Officer Beining located Woodall and Shеlton in their apartment within the complex at approximately 1:00 a.m., Woodall was extremely intoxicated and had a fresh lip injury as describеd by an eyewitness. Although Woodall denied knowledge of the incident, he was subsequently identified by an eyewitness as the passenger in the suspect vehicle, and arrested. Shelton was also in the apartment and was intoxicated and appeared to have been awakened from sleep. A strong odor of alcohol emanated from his person, his eyes were glassy and bloodshot, his speech was slurred, and he had a fresh injury tо his right arm. In an effort to confirm whether Shelton was the driver of the vehicle, the officer began questioning him but did not advise him of his Miranda rights prior to questioning. Officer Bеining testified at the motion to suppress hearing that Shelton was not told that he was not free to leave, was not placed in handcuffs, and his aсcess to leave was not blocked. Shelton did not present any evidence to rebut this testimony at the hearing.
Shelton denied driving his vehicle that night аnd initially informed the officer that he had stayed at home drinking and became inebriated while at home. Upon further questioning, Shelton changed his story and admitted that he had been drinking with some friends, including Woodall, at a night club and a restaurant, but he could not say which friend drove that evening. He further stated thаt upon his arrival at home at approximately 10:30 p.m., he went to bed. Shelton accompanied the officer outside to the police car where he was identified by an eyewitness as the driver of the Camaro at the time of the collision and was arrested. When the Camarо was subsequently located by another officer, the windshield was cracked and an empty beer container and three unopened beеr containers were found in the vehicle. An intoximeter test administered at 2:32 a.m. revealed that Shelton had a blood-alcohol content of .19 grams.
1. Shelton asserts that the trial court erred in refusing to suppress his
pre-Miranda
statement made to the investigating officer in which he admitted that he had been drinking before the collision. Although Shelton was questioned in his apartment and on the stairs
2. Next, Shelton argues that the evidence produced at trial was insufficient to suрport the jury’s verdict that he was under the influence of alcohol to the extent that he was a less safe driver. Specifically, Shelton assеrts that the prosecution failed to present any evidence that he was intoxicated or manifested any signs of intoxication while driving his vehicle at the time of the incident. We disagree.
Shelton admitted that he became inebriated while drinking with some friends. When questioned by Officer Beining hours after hе had struck the parked truck, he manifested signs of intoxication and an odor of alcohol permeated his skin and clothing. He did not consume аny alcohol when he returned home since he contended that he went to bed and to sleep immediately upon arrival, and any rationаl trier of fact could infer that his elevated blood-alcohol level four hours after the collision stemmed from the alcohol that he сonsumed earlier in the evening. “ ‘No fact is better known or publicized than [the fact] that alcohol slows the reflexes, dulls the thinking processes, slоws the impulse stimuli and reaction thereto. . . .’ [Cits.]”
Menendez v. Jewett,
While OCGA § 40-6-391 (a) (1) makes it unlawful for a person to drive or be in actual physical control of any moving vehiсle 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,
3. Lastly, Shelton argues that the trial court erred in charging the jury on the presumptions codified in OCGA § 40-6-392 (b) when the only matter for jury resolution was whether he was operating the vehicle under the influence of alcohol to the extent that he was a less safe driver. He maintains that such a charge was extremely prejudicial and was erroneous as a matter of law since OCGA § 40-6-392 was
While Shelton is correct that the trial judge incorrectly charged the statute as it existed prior to the 1991 amendmеnt, Shelton has not shown that he has been harmed by the trial court’s instruction to the jury that they could infer that Shelton was under the influence of alcohol based upon his blood-alcohol content. The trial court’s charge did not invade the province of the jury. See
King v. State,
Judgment affirmed.
Notes
The trial court granted Shelton’s motion for directed verdict as to Counts 2 and 3 of the indictment, which chаrged him with driving with unlawful alcohol concentration in violation of OCGA § 40-6-391 (a) (4), and leaving the scene of an accident in violation of OCGA § 40-6-270, respectivеly. The trial court denied Shelton’s motion for directed verdict on Count 1, driving a motor vehicle under the influence of alcohol to the extent that he was a less safe driver.