*1 and the old if the accounts were combined not be used and could account number created, and Here, a new account was retained.” was retained. the old account number is no evidence that there telephone request only is that Ms. South’s Because the evidence redemption in accordance with all $40,000 CD was made for regulations bank, the bank is of the account and conditions liability by protected ingly, §§ 7-1-816 and 7-1-820. Accord- OCGA granted summary judgment. properly the trial court appli- argument § that former OCGA 11-3-116 is 3. South’s already against him in been resolved the ear- cable to this case has opinion South, at 748-749. lier of this case. Judgment Barnes, J., J.,R Ruffin, concurs. concurs affirmed. judgment only.
Decided March Duffy appellant. Feemster, Bush, M. & Matthew for Courington Inglesby, Falligant, Horne, Chisholm, & Kathleen appellee. Murphy, Horne, Owen C.
A02A2112. VIAU v. THE STATE.
(579 Phipps, Judge. driving trial, After a bench Shearron Viau was convicted of under the influence drive,1 alcohol to the extent it was less safe for her to
driving
grams
more,2
with an alcohol concentration of 0.08
or
failing
challenges
appeal,
to maintain lane.3 On
the suffi-
ciency
support
convictions,
of the evidence to
the exclusion of cer-
expert testimony,
tain
and the admission of the results of the State-
Finding
error,
administered breath test.
no reversible
affirm.
we
support
1. Viau
contends that
evidence was insufficient to
appeal
conviction,
her convictions. On
from a criminal
we view the
light
judgment,
evidence
ant no
most favorable to the
the
and the defend-
longer enjoys
presumption
of innocence.4
appellate
weigh
An
court does not
the evidence or determine
credibility
only
witness
but
determines that the evidence to
convict
sufficient under the standard of Jackson v. Vir-
(a) (1).
OCGA 40-6-391
§
OCGA 40-6-391
Diaz v.
ginia,
LE2d
Con-
SC
The State years. approxi- assigned At about six to a DUI task force for been August mately drive 31, 2001, the officer saw Viau’s car 1:00 a.m. on during miles, it for about two in and out of its lane and followed occupied weave, times, than to and at more which time it continued ques- stopped approached car, Viau, and The officer one lane. eyes speech slurred, was that her tioned her. He noticed that Viau’s were strong bloodshot, of alcohol when and that she emitted a odor glasses spoke. the officer that she had consumed three she of wine that could follow her or take her home. option. Viau told evening the officer and was “drunk.” She asked whether
He her that would not be an told unsteady exiting vehicle, After she was on her feet. Viau observations, test. Based on his train- refused to take the alco-sensor ing, experience, the officer concluded that Viau was under the influence placed the extent that she was a less safe driver and of alcohol to implied
her under arrest. He then read Viau the consent agreed notice, a An and she to submit to breath test. grams.
registered her alcohol concentration at 0.161 and 0.171 (a) (1) person § makes it unlawful for a OCGA 40-6-391 degree that it drive a car while under the influence of alcohol to the person set forth above was less safe for that to drive. The evidence as fact to conclude that Viau was a sufficient to allow a rational trier of been under the less safe driver than she would have been had she not influence of alcohol.6 (a) (5) person § makes it unlawful for a OCGA 40-6-391 grams person’s a car while that alcohol concentration is 0.08 or drive any driving. Ample after such evi- more at dence time within three hours violating supported that Code section.7 Viau’s conviction (c) “[a] provides driven vehicle shall be single nearly practicable entirely not as as within a lane shall be has first ascertained that such moved from such lane until the driver movement can be made with safety.”Arguing that she did not violate arresting points section, Viau officer’s that Code (Punctuation omitted.) v. Childress id.; Parker v. Bagwell v. safety compromised driving car. of other had not that her Further, being pointing were that condominiums to her stopped, point claims where she was at the constructed along placed driving barrels her lane to avoid outside that she was edge the road. nearby Weaving 40-6- lanes violates OCGA into without reason (l).8 by “failing] charged lane failure to maintain with 48 drive a vehicle single entirely nearly practicable within a lane.” as explanation reject for her was authorized The trial court opinion accept driving that her alcohol the officer’s and to manner of consumption driving.9 impaired had by Viau, not State,10cited does demand The case Allenbrand question contrary there was suffi- of whether a result because failure to maintain lane the defendant for evidence to convict cient merely presented Rather, Allenbrand determined there. was not weaving arresting opinion had not that a defendant’s determining danger posed was irrelevant to other traffic stop probable the vehicle for failure had cause to whether lane. to maintain the trial court abused its discretion
2. Viau contends that excluding, that she claims would have irrelevant, evidence *3 challenging Evidence of her breath tests. attacked the results breathalyzer weight results, not to but results relates 11 may always admissibility. introduce evidence of the have caused the “Anaccused might possibility of error or circumstances long malfunction,”12 as the evidence is relevant.13 To be machine to relevant, so of lies within must raise a reasonable inference machine said evidence testimony expert The decision to exclude malfunction.14 the discretion, will not disturb it trial court’s sound and this court a clear abuse of discretion.15 absent sought presented the machine erroneous to show that Joseph through Citron, M.D., who was
results principles scientific trained in the use of the underlying 5000 and the subject’s proffer, if its In a Citron stated that use. body temperature “higher 98.6,” the machine would than then (1) (510 889) (1999). State, 32, App. SE2d See Davis v. 236 Ga. (1) (546 State, 190, 191 Childress, supra; App. SE2d Stone v. 248 Ga. (1) (458 217 Ga. Lattarulo v. 12Id. (evi (1997); Knapp being upon directly questions either or indi must relate to the tried and bear them dence excluded). rectly; irrelevant matter should be supra; Knapp, 24-2-1. OCGA (2002); Knapp, supra at Mimms v. 177. present higher subject’s concentra- a result than the actual alcohol higher temperature gas; air can hold more can hold tion “because at more alcohol.” Citron stated that the research he had reviewed body temperature showed a linear correlation between an elevated artificially high and an result. But he could not determine how knowing subject’s body inflated a result would be without actual temperature. knowledge [Viau’s] admitted, He “I have of what no body temperature evening.” was that responded
Defense counsel to the court’s concerns about the any temperature by pointing absence of evidence of Viau’s to Viau’s evening it had been “hot” at around 9:00 on the question gone swimming shortly and that she had before she was stopped. pointed Defense counsel then out that Citron had testified swimming that a hot environment and were two circumstances that person’s body temperature. could elevate a testimony regarding
The court ruled that the the effect of body temperature the.Intoxilyzer an elevated 5000 was not rele- body temperature. vant because there was no evidence of Viau’s While there was circumstantial evidence that Viau
may have had an body temperature notably, proffer earlier, elevated there was no that either of the two cited circumstances had caused temperature Viau’s Nor was there a to remain elevated at the time she was tested.
proffer body temperature, of Viau’s normal such as would show that had it all, been elevated at it would have exceeded degrees. margin proffered, Furthermore, 98.6 with no of error there showing high body temperature was no that a could have accounted by grams, for an alcohol concentration result that was elevated 0.081 required as would have been case, to find harm in this where Viau’s samples legal exceeded twice the limit. presented independent Moreover, Viau calculation of using alcohol concentration Citron formula, Widmark which reestimates alcohol concentration. But even that evidence showed legal that her alcohol concentration was above the limit. Under the proffered case, circumstances of this where link between tes- timony highly and machine malfunction is tenuous and where the possibility requires speculation, *4 of harmful error sheer we conclude that Viau has failed to demonstrate reversible error.16 contrary State,17 Yount Viau, cited does not demand a rul ing. excluding There, we determined that the trial court erred in expert “absorption irrelevant evidence of the and elimination of alco body,” proffered testimony hol in the where the was that the (2) (b) (558 Knapp, supra; App. see also Evans v. 253 Ga. SE2d (2001). reading of that defendant’s was elevated because evening, the Widmark formula would that activities earlier
yield Here, Yount, in the concentration. unlike a different alcohol proffered testimony between the record that the connection showed any possible was too remote error in the results of tests and and uncertain. permit And, Yount, in Viau was unlike the defendant challenge evidence that calcu the State’s evidence with ted to lated her alcohol concentration using the Widmark formula. denying in her the trial court erred motion 3. Viau claims that suppress her breath test because the officer did not the results of implied to her and the officer misled read the consent notice because gave hope if to the test. In her and of benefit she submitted suppress, reviewing grant we must con- or denial of a motion to favorably uphold findings judg- the evidence most strue disputed court, and that as to facts ment of the trial court’s clearly adopted must be unless erroneous.18 (a) Although did not read the to the Viau testified that officer arresting implied her, consent notice contrary sitting fact, court, the trial as the trier of authorized evidentiary adversely resolve the conflict to her. (b) Conceding right present there is no to have counsel person a chemical and when asked when a to record that is asked to submit to test comply implied law,19 with the consent Viau contends that arresting believing that the officer “misled her into
establishes right submitting and[ ] had such a coerced her into Citing Boger,20 argues that the trial should test.” State v. court have excluded the of her tests. results breath Boger, stop, arresting
In at the scene of the traffic right misled the defendant to believe that he would have the sel at the time of the State’s chemical test of his to coun- although breath, no right relying Later, belief, such existed. on that the defendant attorney. test refused to submit to that without We concluded excluding circumstances, under those court did not err the defendant’s refusal. The trial court this case determined that controlling. Boger was not
Relying Boger, portion that a maintains suppressed establishes that her test results should have been But if because she was misled. even certain statements that Viau testing claims she made at the time of at the detention center are request counsel, viewed as a her own account further reveals that attorney the officer informed her that she would be able to contact an (565 Leiske v. App. (2) Rawl v. Ga. *5 Nothing that the officer demonstrates in the record “in a little bit.” attorney at entitled to an her that she was misled to believe somehow test. the time of the breath Boger, her sub- to claim that Viau also seems
In her reliance supposed the test, it followed because mission to the breath hope “promise” gave coerced. counsel, and was thus her of benefit of Viau about officer made to find that statement the We do not “hope giving of her bene- to the level of later access to counsel rises fit.”21 right legal appropriate time is a at the to advice of counsel Access to which by We are not convinced the is entitled.22 defendant by telling argument her in this case the officer coerced that to counsel soon. her would be entitled advice of that she that, at the of the traffic Furthermore, testified scene the officer stop, agreed the chemical of her breath to submit to State’s test request that time. He had no recollec- and that she made no other at testing, husband, call who that, tion the time Viau asked to at of by attorney. by time Moreover, admission, was an the she Viau’s own going [she] already to husband, asked call her “knew take to the test.” favorably upholding most toward the court’s
Construed finding judgment, the record not a does demand gave her, to submitted the test because the officer misled hope benefit, of or otherwise coerced her. Judgment Andrews, Mikell, J., J.,P. concurs. concurs affirmed.
specially. Judge, concurring specially.
Mikell, fully judgment. I in concur Divisions and 3 and As to 2, I Division believe that the trial did its discretion court abuse excluding expert witness, Citron, Dr. defendant’s regarding reliability Georgia of the machine’s results. law favors especially evidence, of the introduction evidence in a criminal trial might jury deciding weight which aid a be given given to scientific tests. But error was harmless for the reasons majority opinion: sample
in-the showed a blood alco- legal hol concentration more than twice the limit and there was no proffer allegedly that the would for an account erroneous magnitude. impeachment Moreover, result of scientific evi- (3) (543 Roberts, (2001); generally State v. Carswell v. Ga. (1); (b), Boger, supra at Ross v. Ga. n. 3 (1985) (Miranda subjected right police custody if an is in counsel attaches accused (1999); police interrogation); Ga. Scanlon v. 363-364 Rawl, supra. jury unlikely impress admits to when the motorist dence arresting is “drunk.” that the motorist 21, February Decided 7,2003 March denied Reconsideration appellant. Willis, Head, for Thomas, William C. Head, Webb& *6 Craig Miller, Joseph Solicitor-General, Assistant Drolet, E. J. appellee. Solicitor-General, for PROPERTIES, INC. HAYNES v. KINGSTOWN
A02A1719. (578 SE2d Presiding Judge. Ruffin, (“Kings- Haynes Kingstown Properties, Inc. Rochene Terrie sued town”) Kingstown allegedly injuries in a fire at a he sustained granted Kings- apartment complex The trial court in Savannah. Haynes summary judgment, appeals. For rea- motion for town’s follow,we affirm. sons that genuine
Summary judgment appropriate when no issues of judgment as a fact remain and the movant is entitled material matter of law.1On summary grant judgment appeal, we review the light construing and all inferences in the most novo, de the evidence nonmoving party.2 favorable Haynes’ girlfriend, light, the record shows that
Viewed this Kingstown July Myers, apartment 2,1999. on Chiffon leased days Haynes Myers apartment later, moved into the three after representative. through Kingstown walking the residence with a Kingstown Although Haynes party agreement, was not a to the lease Myers. living knew that he was with Haynes Myers cooking January 29, were dinner
On Myers top, apartment. prepared a fire As french fries on the stove injured trying Haynes erupted while to extin- from the burner. guish the flames. investigator McClendon, for Savannah’s Bureau
Louis the chief Services, Emergency investigated In the fire. a November of Fire and explained affidavit, as follows: McClendon his February During [my]investigation Myers’ apartment [of Hotpoint 2000], I stove. The examined the brand electric Eagle’s See Villareal v. TGM Pointe, 2 See id.