United States v

Pineda, No. 1:06-cr-350-WSD, 2008 U.S. Dist. LEXIS 18137 (N.D. Ga. Mar. 10, 2008). While the state failed to adduce direct evidence showing, at the moment the vehicle was at the subdivision’s exit, the precise location of the cars that were later stopped in front of or behind the vehicle at the next intersection, a reasonable inference arose from the officer’s testimony 40-6-123 that the cars stopped at the stop sign with the vehicle had exited the nearby driveway at a time such that the driver of the vehicle defendant was riding in was required to signal the driver’s intent to turn. Thus, the evidence obtained as a result of the traffic stop was admissible. Morgan v. State, 309 Ga. App. 740, 710 S.E.2d 922 (2011). Defendant was properly stopped when the defendant turned off from a road-block without using a turn signal. The arresting officer testified that the officer knew the officer could not stop the defendant for failing to employ a turn signal unless there were other cars behind the defendant, and that the officer specifically remembered other cars following closely behind the defendant when the defendant turned without a signal in violation of O.C.G.A. § 40-6-123. Scandrett v. State, 293 Ga. 602, 748 S.E.2d 861 (2013). Probable cause for arrest for violation. — In the absence of any signal visible in the darkness, a trooper had probable cause to stop the defendant’s vehicle for a possible violation of O.C.G.A. § 40-6-123(b) and was not obligated to assume the defendant had vainly indicated such lane changes by means of hand and arm signals. Mayfield v. State, 186 Ga. App. 233, 566 S.E.2d 836 (1988). When a police officer was stopped directly behind the defendant at a red stop signal, the fact that both vehicles were stopped prior to the defendant’s turn did not obviate the need for the defendant to use the defendant’s turn signal and, upon seeing defendant commit the offense, the officer was authorized to stop the defendant. Trippe v. State, 219 Ga. App. 250, 464 S.E.2d 655 (1995). When the defendant, driving a car only five to seven feet in front of a police officer, violated O.C.G.A. § 40-6-123, probable cause existed to stop the vehicle, and the trial court erred as a matter of fact and law in holding the stop was pretextual. State v. Reddy, 236 Ga. App. 106, 511 S.E.2d 530 (1999). In accordance with O.C.G.A. § 40-6-123, the defendant was required to use defendant’s signal to alert the officers behind the defendant of the defendant’s intention to turn right and, upon observ- 122 ing the defendant commit a traffic offense, the officers were authorized to stop the defendant. Woodward v. State, 245 Ga. App. 409, 537 S.E.2d 791 (2000). Application to vehicle turning from direct course of travel. — In a jury charge, former Code 1933, § 68-303 was applicable to a vehicle which was upon the highway and turned to the right or left from a direct course of travel. Shank v. Nexsen, 127 Ga. App. 684, 194 S.E.2d 586 (1972) (decided under former Code 1933, § 68-303). Failure to signal for lane change. — When an officer testified that the defendant changed lanes without a signal at a time when traffic was heavy and that such a lane change was unsafe, the officer’s stop of the defendant’s vehicle was not pretextual. Knight v. State, 234 Ga. App. 359, 506 S.E.2d 245 (1998). Probable cause existed to stop the defendant’s car because the defendant failed to signal while changing lanes as required by O.C.G.A. § 40-6-123 as the officer’s car was approximately 30 feet behind the defendant, and the Fourth Amendment did not require that a traffic citation be issued. United States v. Woods, No. 09-15555, 2010 U.S. App. LEXIS 13642 (11th Cir. July 2, 2010) (Unpublished). Officer’s traffic stop of a defendant was justified by specific articulable facts giving the officer a reasonable suspicion of a traffic violation, i.e. changing lanes without reasonable safety in violation of O.C.G.A. § 40-6-123(a), even though the defendant was ultimately acquitted of that offense, given that the defendant abruptly changed lanes in front of the officer without signalling, requiring the officer to apply the officer’s brakes. Parker v. State, 307 Ga. App. 61, 704 S.E.2d 438 (2010). Evidence, viewed in the light most favorable to the prosecution, authorized the jury to find that the defendant turned without signaling because a patrol officer testified that the officer saw that the defendant twice failed to use a turn signal when traffic conditions required the defendant to do so. Nunnally v. State, 310 Ga. App. 183, 713 S.E.2d 408 (2011). Trial court did not err in denying defendant’s motion to suppress on the ground 40-6-123 that the traffic stop was improperly based on a violation of O.C.G.A. § 40-6-123 for movement of a vehicle into the dedicated turn lane without a signal because there existed a reasonable articulable suspicion for a brief investigatory stop of the vehicle based on the officer’s observation that defendant was not wearing a seatbelt. The seatbelt violation alone authorized a stop of the vehicle. Wilson v. State, 318 Ga. App. 59, 733 S.E.2d 365 (2012). Left turn signal was not necessary from a left-turn-only lane and, since the defendant made a U-turn from such position, an officer was not justified in making a stop based on the officer’s conclusion that the defendant was intoxicated. State v. Goodman, 220 Ga. App. 169, 469 S.E.2d 327 (1996). Driver who is turning as directed by a traffic control device is not relieved from complying with other rules of the road such as signaling or maintaining a diligent lookout. Richardson v. Chesky, 235 Ga. App. 28, 508 S.E.2d 441 (1998). Negligence per se. — When the defendant came to a complete or almost complete stop in the road, allegedly without any brake, emergency, or signal lights, at a time and place where traffic was ‘‘bad,’’ there was evidence that the defendant was negligent per se and partially at fault for the subsequent accident where a car following the defendant was hit by another car, and a directed verdict in favor of the defendant was reversed. Harrison v. Jenkins, 235 Ga. App. 665, 510 S.E.2d 345 (1998). Use of signals as ‘‘do pass’’ signal is negligence per se. — It is negligence per se for the operator of a motor vehicle to use that operator’s electrical directional signals to indicate it is safe for a following motorist to pass. Cunningham v. National Serv. Indus., Inc., 174 Ga. App. 832, 331 S.E.2d 899 (1985). Evidence insufficient to support conviction of improper lane changing. — See Eisenberger v. State, 177 Ga. App. 673, 340 S.E.2d 232, cert. denied, 479 U.S. 818, 107 S. Ct. 77, 93 L. Ed. 2d 33 (1986). Evidence insufficient to support stopping car for changing lanes. — When the nearest following car was ap- 123 Application (Cont’d) proximately 100 yards away, and there was no evidence to suggest that the road or traffic conditions were such that it was unsafe for the defendants to have changed lanes without using a turn signal, there was no basis for stopping the car. Bowers v. State, 221 Ga. App. 886, 473 S.E.2d 201 (1996). Evidence insufficient to support conviction. — Evidence was insufficient to sustain a conviction since there was no evidence that a turn signal was required to alert other drivers in the area to the defendant’s turn. Moore v. State, 234 Ga. App. 332, 506 S.E.2d 685 (1998). Evidence obtained from search after legal stop. — When any one of the traffic violations observed by a police officer would have provided probable cause to effectuate a traffic stop, the trial court’s denial of a motion to suppress evidence found during a subsequent search of the defendant’s person, based upon an allegedly improper traffic stop, was not clearly erroneous. Tukes v. State, 236 Ga. App. 77, 511 S.E.2d 534 (1999). Defendant’s Fourth Amendment rights were not violated because there was probable cause to stop a taxicab because a taxicab driver violated O.C.G.A. § 40-6-123 by an improper lane change and, even assuming that the defendant, as a passenger, had an expectation of privacy, the defendant was present when the driver consented and never expressed any disagreement to a search of the passenger compartment. United States v. Harris, 526 F.3d 1334 (11th Cir. 2008), cert. denied, 129 S. Ct. 569, 172 L.Ed.2d 433 (2008). Evidence sufficient for injury by vehicle after violating statute. — With regard to a defendant’s convictions for improper lane change, serious injury by vehicle while driving under the influence, and misdemeanor obstruction of an officer, there was sufficient evidence to support the convictions based on an officer’s testimony that the defendant attempted to leave the scene several times and the evidence of the defendant’s vehicle passenger suffering a severe injury to the left eye. It was unnecessary to show that the 40-6-123 passenger’s eye was permanently rendered useless. Wells v. State, 297 Ga. App. 153, 676 S.E.2d 821 (2009). No evidence refuting officer’s testimony. — When there was no evidence in the record refuting a police officer’s testimony that the officer stopped the defendant because of a failure to signal a turn, the trial court’s decision to deny a motion to suppress was supported by the record. Williams v. State, 236 Ga. App. 102, 511 S.E.2d 216 (1999). Underlying offense for vehicular homicide. — Trial court’s failure to merge the defendant’s convictions for driving recklessly and committing second degree vehicular homicide in violation of O.C.G.A. §§ 40-6-390 and 40-6-393, respectively, was not error for sentencing purposes as the reckless driving offense was not the underlying offense of the homicide, but rather, improper lane change was, in violation of O.C.G.A. § 40-6-123(a); further, pursuant to O.C.G.A. § 16-1-6, there was no factual merger because the crimes were committed sequentially and separately. Cutter v. State, 275 Ga. App. 888, 622 S.E.2d 96 (2005). Summary judgment improper on issue of negligence. — Trial court erred in granting a driver summary judgment in a children’s wrongful death action because the evidence was sufficient to create a genuine issue of material fact on the questions of whether the driver acted negligently and whether the driver’s negligence was a concurring proximate cause of the collision that resulted in the death of the children’s father; a jury hearing the evidence could find that the driver failed to keep a proper lookout as the driver proceeded down the highway, made an unnecessarily sudden stop without warning as the driver approached the cross street, and was a concurring proximate cause of the collision that killed the father. Hayes v. Crawford, 317 Ga. App. 75, 730 S.E.2d 26 (2012). Jury Instructions Trial court erred in charging the jury under O.C.G.A. § 40-6-123(c) in an action arising out of a rear-end collision, since although there was evidence that 124 the driver slowed down when the driver approached an intersection, there was no evidence that the driver applied the driver’s brakes, and there was no evidence as to whether the driver gave an appropriate signal by hand and arm or signal lamps. Wallace v. Ramey, 191 Ga. App. 293, 381 S.E.2d 434 (1989). Instructions. — Reversal of the defendant’s conviction for improper lane change was required since the trial court first instructed the jury by reading the language of the accusation charging the defendant with an improper lane change in violation of O.C.G.A. § 40-6-48, then later read subsection (b) of O.C.G.A. § 40-6-123 and told the jury that the defendant was charged with improper lane change in violation thereof. Threatt v. State, 240 Ga. App. 592, 524 S.E.2d 276 (1999). When the defendant was charged with failing to maintain the defendant’s lane in violation of O.C.G.A. § 40-6-48 and failing to use a turn signal in violation of O.C.G.A. § 40-6-123, the trial court properly instructed the jury as to the definition of the standard for strict liability offenses because the state was not required to prove mental fault or mens rea in those offenses; although O.C.G.A. § 40-6-10(b) required proof that the defendant knowingly operated the vehicle with no insurance, and O.C.G.A. § 40-6-270 required proof that the defendant knowingly failed to stop and comply with the statute’s mandates, the trial court’s charge on intent 40-6-123 was found sufficient. Augustin v. State, 260 Ga. App. 631, 580 S.E.2d 640 (2003). Because the accusation read to the jury charged an improper lane change, but the jury was twice instructed on the elements of failure to maintain a lane, these inconsistent instructions required reversal of the defendant’s improper lane change conviction. Walker v. State, 280 Ga. App. 393, 634 S.E.2d 177 (2006). Cited in Cason v. Columbus, 148 Ga. App. 208, 250 S.E.2d 836 (1978); Allen v. State, 150 Ga. App. 109, 257 S.E.2d 5 (1979); Mathews v. Taylor, 155 Ga. App. 2, 270 S.E.2d 247 (1980); Hill v. Yara Eng’g Co., 157 Ga. App. 281, 277 S.E.2d 256 (1981); Hunter v. Batton, 160 Ga. App. 849, 288 S.E.2d 244 (1982); Griffin v. Bremen Steel Co., 161 Ga. App. 768, 288 S.E.2d 874 (1982); Morris v. DeLong, 183 Ga. App. 124, 358 S.E.2d 285 (1987); Neiswonger v. Janics, 196 Ga. App. 607, 396 S.E.2d 553 (1990); Corbin v. State, 203 Ga. App. 297, 416 S.E.2d 848 (1992); State v. Jones, 214 Ga. App. 593, 448 S.E.2d 496 (1994); Daniels v. State, 222 Ga. App. 29, 473 S.E.2d 239 (1996); Parker v. State, 249 Ga. App. 530, 549 S.E.2d 154 (2001); Noble v. State, 283 Ga. App. 81, 640 S.E.2d 666 (2006); Cuaresma v. State, 292 Ga. App. 43, 663 S.E.2d 396 (2008); Ray v. State, 292 Ga. App. 575, 665 S.E.2d 345 (2008); Stinson v. State, 318 Ga. App. 351, 733 S.E.2d 390 (2012); Jenkins v. Gaither, No. 12-15631, 2013 U.S. App. LEXIS 20296 (11th Cir. Oct. 4, 2013), (Unpublished).