Marsengill v

State, 275 Ga. App. 840, 622 S.E.2d 58, 2005 Ga. App. LEXIS 1119 (2005). Defendant’s conviction of driving a motor vehicle with a suspended license was supported by sufficient evidence as the defendant could not produce a driver’s license, and the officer’s check on the status of the defendant’s license revealed that the license was suspended. Mayfield v. State, 276 Ga. App. 544, 623 S.E.2d 725, 2005 Ga. App. LEXIS 1310 (2005). Evidence that the defendant’s license was suspended including a written notice given to, signed by, and explained to the defendant, an officer’s observation of the defendant driving after the date of that notice, and the defendant’s admission to the officer, sufficiently established the elements of driving with a suspended license. Wilson v. State, 278 Ga. App. 420, 629 S.E.2d 110, 2006 Ga. App. LEXIS 329 (2006). Admission that the defendant did not have a driver’s license, coupled with the certified copy of the license-suspension notice that was admitted at trial, sufficed to sustain a conviction for driving with a suspended license. Johnson v. State, 279 Ga. App. 98, 630 S.E.2d 612, 2006 Ga. App. LEXIS 458 (2006). Despite a lack of direct evidence to show that the defendant drove the victim’s vehicle, a conviction for driving with a suspended license was upheld as sufficient circumstantial evidence existed that showed the defendant returned the vehicle to the parking lot where the victim left the vehicle running with the keys in the ignition, and the police saw the defendant walking away from the vehicle after 718 40-5-121 DRIVERS’ LICENSES doing so. Wheeler v. State, 281 Ga. App. 158, 635 S.E.2d 415, 2006 Ga. App. LEXIS 1026 (2006). In a case where the defendant was convicted of driving with a suspended license, there was sufficient evidence that the defendant was driving since: the vehicle involved was owned by a person with whom the defendant lived; the defendant had driven the vehicle on other occasions while the defendant’s license was suspended; the vehicle was driven to the defendant’s home by a driver whom an officer believed to be the defendant; and after the vehicle was abandoned at the defendant’s residence, the defendant arrived on the scene wearing clothes similar to those of the driver. Williams v. State, 285 Ga. App. 190, 645 S.E.2d 676, 2007 Ga. App. LEXIS 472 (2007). Although a police car video of a defendant’s traffic stop had poor audio quality resulting in inaudible portions, the defendant’s admissions that the defendant’s license was suspended were admissible as part of the res gestae pursuant to former O.C.G.A. § 24-3-3 (see now O.C.G.A. § 24-8-803). The defendant could attack the weight and credibility of the recording, but not the recording’s admissibility; thus, the evidence was sufficient to convict the defendant of driving with a suspended license. Steed v. State, 309 Ga. App. 546, 710 S.E.2d 696, 2011 Ga. App. LEXIS 393 (2011), cert. dismissed, No. S12C0138, 2012 Ga. LEXIS 381 (Ga. Apr. 24, 2012). Defendant’s own testimony that the defendant had no license and had knowledge that the defendant’s license was suspended and the officer’s observation of the defendant exiting the driver’s side of the vehicle was sufficient to support the conviction for driving with a suspended license. Daniels v. State, 321 Ga. App. 748, 743 S.E.2d 440, 2013 Ga. App. LEXIS 401 (2013). Evidence was sufficient to convict the defendant of trafficking in methamphetamine, possession of oxycodone and less than one ounce of marijuana, and driving while the defendant’s license was suspended because the defendant knew the defendant’s license to drive was suspended, and because the defendant know- 40-5-121 ingly had both the power and intention to exercise dominion or control over the controlled substances found in the backpack and was in constructive possession of those substances as the defendant was driving the car in which the backpack was located, and the defendant was linked to the backpack by the defendant’s control of the car and evidence that the backpack contained a copy of a fake driver’s license the defendant gave to an officer. Armstrong v. State, 325 Ga. App. 690, 754 S.E.2d 652, 2014 Ga. App. LEXIS 51 (2014). Evidence supported the defendant’s conviction for DUI and driving with a suspended license, O.C.G.A. §§ 40-5-121 and 40-6-391, based on evidence that the homeowners called 911 to report the defendant leaving their home intoxicated, that police observed signs of impairment (odor of alcohol, horizontal gaze nystagmus clues, and positive breath test), and a blood test. Danley v. State, 342 Ga. App. 61, 802 S.E.2d 851, 2017 Ga. App. LEXIS 306 (2017), overruled in part, McClure v. State, 306 Ga. 856, 834 S.E.2d 96, 2019 Ga. LEXIS 643 (2019). There was sufficient evidence to support the defendant’s conviction for driving with a suspended license, including the defendant’s admission that at the time of the incident the defendant’s driver’s license was suspended and that the defendant was driving to the apartment complex to pick up a friend, and evidence that under the conditions of the suspended or limited license, the defendant was only allowed to drive to and from work and in other limited situations, which did not include picking up a friend. Thelusma v. State, 356 Ga. App. 495, 847 S.E.2d 852, 2020 Ga. App. LEXIS 470 (2020). Effect of premature issuance. — Premature issuance of a driver’s license to the defendant was not adequate to show as a matter of law that the defendant’s driving privileges had been properly reinstated, nor did that premature issuance refute the evidence that the defendant drove a motor vehicle on a public highway at a time when the defendant’s privilege to do so was suspended and before having the defendant’s license reinstated when and 719 40-5-121 MOTOR VEHICLES & TRAFFIC as permitted by statutory procedure. Payne v. State, 209 Ga. App. 780, 434 S.E.2d 543, 1993 Ga. App. LEXIS 985 (1993); Grisson v. State, 237 Ga. App. 559, 515 S.E.2d 857. Sentence of 30 days in jail for a violation of Ga. L. 1937, p. 322 is lawful. Bush v. State, 108 Ga. App. 638, 134 S.E.2d 490, 1963 Ga. App. LEXIS 728 (1963) (decided under Ga. L. 1937, p. 322). Evidence supported finding that defendant had actual notice that defendant’s license was suspended since a police officer had advised defendant, after running a computer check, that the license was suspended. Arnold v. State, 189 Ga. App. 900, 377 S.E.2d 918, 1989 Ga. App. LEXIS 55 (1989). Prosecutorial discretion. — Even if the defendant admitted notice that the defendant had the legal status of a habitual violator, the state was not bound to charge the defendant with a O.C.G.A. § 40-5-58 felony and was not precluded from charging defendant with a O.C.G.A. § 40-5-121 misdemeanor. The decision of whether to prosecute and what charges to file are decisions that rest in the prosecutor’s discretion. Noeske v. State, 181 Ga. App. 778, 353 S.E.2d 635, 1987 Ga. App. LEXIS 1555 (1987). Prosecutor was fully authorized to charge defendant by accusation, and nothing within O.C.G.A. § 40-5-121 governed the prosecutor’s authority to charge the defendant. Allman v. State, 258 Ga. App. 792, 575 S.E.2d 710, 2002 Ga. App. LEXIS 1573 (2002). Habitual violator felony status. — It is a misdemeanor for one to drive while one’s license is suspended or revoked, but if, pursuant to O.C.G.A. § 40-5-58, the license of the driver had been revoked because the driver was a habitual violator, then the action is considered a more serious offense and constitutes a felony. That is the meaning of the exception contained in subsection (a) of O.C.G.A. § 40-5-121. Noeske v.