Wright v

State, 228 Ga. App. 717, 492 S.E.2d 581 (1997). Trial court properly denied the defendant’s amended motion for a new trial, holding that the administration of breath tests pursuant to Ga. Comp. R. & Regs. 92-3-.06(12)(b) did not violate the due process clause under both U.S. Const., amend. 5 or Ga. Const. 1983, Art. I, Sec. I, Para. I, given that: (1) the claim was raised for the first time in the new trial motion, and was thus untimely; (2) the defendant had an alternative remedy under the Georgia Administrative Procedure Act, O.C.G.A. § 50-13-1; (3) the defendant failed to show that the Division of Forensic Sciences (DFS) eliminated meaningful procedures for conducting breath tests when the department promulgated the rule; and (4) the techniques and methods approved by DFS were sufficient to ensure fair and accurate testing. Palmaka v. State, 280 Ga. App. 761, 634 S.E.2d 883 (2006). Evidence of ALS agreement relevant. — In a DUI case under O.C.G.A. § 40-6-391(a)(1), evidence of an agreement the defendant entered in an administrative license suspension (ALS) proceeding, in which the defendant agreed to plead guilty to DUI in exchange for the return of the defendant’s license, was relevant and admissible in the defendant’s DUI case although the defendant later 40-6-391 decided not to plead guilty and go to trial, and although the agreement did not recite that it could be used against the defendant at trial. Smith v. State, 345 Ga. App. 43, No. A18A0800, 2018 Ga. App. LEXIS 163 (2018). Standard is ‘‘any drug.’’ — Accusation brought pursuant to O.C.G.A. § 40-6-391(a)(2) is not insufficient if it fails to name a particular drug; in fact, that provision makes it unlawful to drive while under the influence of any drug. Buchanan v. State, 264 Ga. App. 148, 589 S.E.2d 876 (2003). Definition of marijuana under statute. — Definition of ‘‘marijuana’’ under the Motor Vehicles Act, O.C.G.A. § 40-6-391 et seq., not only includes THC for purposes of determining whether one is driving under the influence, but requires that THC be considered ‘‘marijuana’’ in order for paragraph (a)(6) of O.C.G.A. § 40-6-391 to be actionable since THC in the blood or urine is the method by which the presence of marijuana is detected for purposes of determining whether one is driving under the influence thereof. Cronan v. State, 236 Ga. App. 374, 511 S.E.2d 899 (1999). Suspension of license not prosecution for double jeopardy purposes. — Suspension of a driver’s license at an administrative hearing was not punishment, nor was the hearing a prosecution for the purposes of double jeopardy; thus, a subsequent criminal prosecution for driving under the influence was not barred. Nolen v. State, 218 Ga. App. 819, 463 S.E.2d 504 (1995), cert. denied, 518 U.S. 1018, 116 S. Ct. 2550, 135 L. Ed. 2d 1070 (1996); McDaniel v. State, 224 Ga. App. 5, 479 S.E.2d 779 (1996). Payment of the fee required for reinstatement of a driver’s license after the license was suspended following an arrest for driving under the influence was not punishment and did not bar a subsequent prosecution for driving under the influence. Thompson v. State, 229 Ga. App. 526, 494 S.E.2d 306 (1997); Morgan v. State, 229 Ga. App. 861, 495 S.E.2d 138 (1998). O.C.G.A. § 40-6-391(a)(2) provides adequate notice that a person who ingests marijuana or any other drug speci- 285 General Consideration (Cont’d) fied in that section and then drives a motor vehicle does so at his or her own peril of violating these provisions. Kevinezz v. State, 265 Ga. 78, 454 S.E.2d 441 (1995). Operator under influence to extent vehicle’s operation less safe. — ‘‘Under the influence’’ means more than having consumed the smallest amount of alcohol possible to imagine. The operator of a motor vehicle must be under the influence of an intoxicant to the extent that it is less safe for the operator to operate a motor vehicle than if the operator were not so affected. Anderson v. State, 226 Ga. 35, 172 S.E.2d 424 (1970) (decided under Ga. L. 1953, Nov.-Dec. Sess., p. 556). Trial court did not err in denying the defendant’s motion to quash the uniform traffic citation filed against the defendant even though the citation did not specify whether the defendant was being charged with DUI under O.C.G.A. § 40-6-391(a)(1), known as ‘‘less safe DUI’’ or under O.C.G.A. § 40-6-391(a)(5), known as ‘‘per se DUI’’ since those provisions were not separate offenses but were merely alternative ways to prove the offense of DUI; however, the trial court did violate the defendant’s procedural due process rights to present evidence when the trial court told the state to stick to proving ‘‘per se DUI’’ because the trial court indicated to the defendant that it was not going to require the defendant to defend against a ‘‘less safe DUI’’ charge even though the trial court later clarified that the resulting conviction was for ‘‘less safe DUI.’’ Rigdon v. State, 270 Ga. App. 217, 605 S.E.2d 903 (2004). Testimony of deputies who observed a defendant driving erratically and a paramedic who examined the defendant at the stop scene to the effect that the defendant was under the influence of alcohol to the extent that the defendant was a less safe driver, along with blood alcohol evidence, was sufficient for the jury to find beyond a reasonable doubt that the defendant was guilty of driving under the influence of alcohol to the extent that the defendant was a less safe driver, and of failing to safely maintain the vehicle within a 40-6-391 marked traffic lane in violation of O.C.G.A. §§ 40-6-48(1) and 40-6-391(a)(1). Stubblefield v. State, 302 Ga. App. 499, 690 S.E.2d 892 (2010). No intent to repeal criminal sanctions. — Legislature, in amending O.C.G.A. § 40-6-391 in 1988, did not intend to repeal the criminal sanctions for driving under the influence of alcohol. Proo v. State, 192 Ga. App. 169, 384 S.E.2d 197 (1989), cert. denied, 493 U.S. 1071, 110 S. Ct. 1115, 107 L. Ed. 2d 1022 (1990); Proveaux v. State, 198 Ga. App. 119, 401 S.E.2d 12 (1990). Legislative intent. — O.C.G.A. § 40-6-391(b) is clear enough to discern the legislature’s intention, which was not, as appellant argues, to allow anyone who has ever legally used a drug to be exempt from the prohibitions of § 40-6-391(a). Burks v. State, 195 Ga. App. 516, 394 S.E.2d 136 (1990). City ordinance attempting to make penal state offense of DWI. — To apply a city ordinance attempting to make penal the state offense of driving while intoxicated, would, equally, result in an illegal conviction, as infringing upon the state law governing that subject. In either event, a conviction under the ordinance upon such a state of facts would be void and could not be pleaded in abatement against an accusation in the state court for violating the state law. Smith v. State, 88 Ga. App. 749, 77 S.E.2d 764 (1953) (decided under prior Code 1933, § 68-307). Offense separate and distinct from public drunkenness. — Offense of operating vehicle while under the influence is separate and distinct from public drunkenness in that each requires for conviction ingredients not essential to the other, and is separate and distinct from the offense of public drunkenness contained in a city ordinance. Accordingly, a conviction of violation of an ordinance relating to being drunk on the street is no bar to a prosecution in the criminal court of a county for the offense of operating a motor vehicle while under the influence of intoxicants. Smith v. State, 88 Ga. App. 749, 77 S.E.2d 764 (1953) (decided under prior Code 1933, § 68-307). Vehicle registration numbers are not element of offense. — Fact that 286 defendant’s DUI citation did not state the tag or registration numbers of the vehicle defendant was driving when arrested was irrelevant to the issue of whether defendant was driving under the influence since that information forms no part of the elements of the offense. Uren v. State, 174 Ga. App. 804, 331 S.E.2d 642 (1985). Indictment may stand upon former Code 1910, § 1770, making it a misdemeanor for one to operate an automobile over the public streets or roads while intoxicated, which was not repealed by the similar unconstitutional 1915 provision. Jones v. State, 151 Ga. 502, 107 S.E. 765 (1921); McDonald v. State, 152 Ga. 223, 109 S.E. 656 (1921) (decided under former Code 1910, § 1770(9)). Indictment charging defendant in language of section. — When the indictment charged the defendant with the offense of operating a motor vehicle under the influence of intoxicating liquor substantially in the language of Ga. L. 1953, p. 556, it was not subject to the ground of demurrer (now motion to dismiss) attacking it because it failed to allege that the defendant’s driving was affected in any manner by the use of the intoxicating liquors and drugs, and because it failed to allege that the defendant’s intoxication made it less safe for the defendant to operate the motor vehicle at the time and place. Hooks v. State, 97 Ga. App. 897, 104 S.E.2d 623 (1958) (decided under Ga. L. 1953, Nov.-Dec. Sess., p. 566). Variation in accusation and citation irrelevant. — Fact that an accusation issued for violation of O.C.G.A. § 40-6-391 is in fact couched in broader language than the uniform traffic citations originally issued establishes no ground for the dismissal of the accusation. Manning v. State, 175 Ga. App. 738, 334 S.E.2d 338 (1985). Issuance of a formal accusation after the defendant’s arrest, specifying alternative methods by which the defendant violated O.C.G.A. § 40-6-391, did not amend the uniform traffic citation, but superseded the citation as the charging instrument. Ellerbee v. State, 215 Ga. App. 102, 449 S.E.2d 874 (1994). Inconsistent verdict could not form basis for attacking DUI conviction. — 40-6-391 Fact that the jury found the defendant not guilty of a charge of failing to maintain a lane could not be a basis for attacking the guilty verdict for driving under the influence of alcohol under O.C.G.A. § 40-6-391(a)(1). Renkiewicz v. State, 283 Ga. App. 692, 642 S.E.2d 384 (2007). Conviction not affected by use of old citation form. — Validity of defendant’s conviction for driving under the influence was not affected by the fact that the uniform traffic citation issued to the defendant was not the form then in use, since the citation showed on the citation’s face that the citation had been approved by the Commissioner of Public Safety as required by O.C.G.A. § 40-13-1. Hudson v. State, 261 Ga. 414, 405 S.E.2d 495 (1991). Variation in accusation and statutory language. — Accusation charging driving under the influence and reciting the proper statute, but omitting ‘‘less safe driver’’ language in O.C.G.A. § 40-6-391, was sufficient. Broski v. State, 196 Ga. App. 116, 395 S.E.2d 317 (1990). Accusation that omitted certain statutory language but that apprised the defendant that the defendant was being charged with driving with an unlawful alcohol concentration of 0.10 grams or more within three hours of operating a vehicle was sufficient. Lewis v. State, 215 Ga. App. 486, 451 S.E.2d 116 (1994). O.C.G.A. § 40-6-391 establishes only one crime, driving under the influence; subsections (a)(1) and (a)(4) of O.C.G.A. § 40-6-391 merely set out two different methods of proving that crime. Kuptz v. State, 179 Ga. App. 150, 345 S.E.2d 670 (1986); Scott v. State, 207 Ga. App. 533, 428 S.E.2d 359 (1993). While it is impermissible to join distinct offenses in a single count of an indictment or accusation, it is also well settled that subsection (a) of O.C.G.A. § 40-6-391 establishes a single crime of driving while in a prohibited condition and that paragraphs (a)(1) and (a)(4) (now (a)(5)) merely define different modes of committing that one crime; a charging instrument is not subject to the objection of duplicity or multifariousness where, as here, alternative methods of violating the one criminal statute at subsection (a) are alleged in a single count. Morgan v. State, 212 Ga. 287 General Consideration (Cont’d) App. 394, 442 S.E.2d 257 (1994); Hankins v. City of Alpharetta, 217 Ga. App. 635, 458 S.E.2d 858 (1995). Defect in one count when the defendant was charged with two alternative counts of driving under the influence arising from the same conduct did not affect the other charge. Smith v. State, 239 Ga. App. 515, 521 S.E.2d 450 (1999). Reference to multiple subsections acceptable. — Trial court did not err in denying the defendant’s motion to quash the uniform traffic citation filed against the defendant and alleging the defendant violated a DUI statute as the uniform traffic citation did not allege more than one offense against the defendant; the citation’s reference to multiple subsections involved the different ways that the state could prove the offense and were not allegations that multiple offenses were committed. Slinkard v. State, 259 Ga. App. 755, 577 S.E.2d 825 (2003). Violation of O.C.G.A. § 40-6-391 was a crime for purposes of the application of a life insurance policy exclusion from the payment of benefits ‘‘for any loss caused directly or indirectly, wholly or partly, by: . . . committing, or attempting to commit a crime.’’ Barnes v. Greater Ga. Life Ins. Co., 243 Ga. App. 149, 530 S.E.2d 748 (2000). Violation serves as statutory predicate. — Trial court did not err in denying the defendant’s motion in arrest of judgment that attacked the validity of the defendant’s indictment for first-degree homicide by vehicle as the allegation in the indictment that the defendant violated O.C.G.A. § 40-6-391(k)(1) could serve as the statutory predicate for the charged offense of first-degree vehicular homicide since the evidence showed that the defendant was under 21-years-old and was driving the defendant’s vehicle with a blood alcohol level measured at .08 grams after the accident, and, thus, the state showed that the statutory predicate offense applied. David v. State, 261 Ga. App. 468, 583 S.E.2d 135 (2003). Defendant’s contention that violation of O.C.G.A. § 40-6-391 was not intended by the legislature to serve as a statutory predicate for vehicular homicide because 40-6-391 enactment of the vehicular homicide statute predated enactment of § 40-6-391 had to be rejected; when the legislature enacted § 40-6-391, it was presumed to do so with knowledge of the existing provisions of the vehicular homicide statute and with reference to it. David v. State, 261 Ga. App. 468, 583 S.E.2d 135 (2003). Paragraph (a)(1) does not require commission of unsafe act. — Paragraph (a)(1) of O.C.G.A. § 40-6-391 makes it unlawful for a person to drive or be in actual physical control of any moving vehicle while 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, 194 Ga. App. 181, 390 S.E.2d 268 (1990); State v. Smith, 196 Ga. App. 876, 397 S.E.2d 304 (1990); Shannon v. State, 205 Ga. App. 831, 424 S.E.2d 51, cert. denied, 205 Ga. App. 901, 424 S.E.2d 51 (1992); Shelton v. State, 214 Ga. App. 166, 447 S.E.2d 115 (1994); Anthony v. State, 211 Ga. App. 622, 441 S.E.2d 70 (1993), overruled on other grounds, State v. Coleman, 216 Ga. App. 598, 455 S.E.2d 604 (1995). Citation adequate under paragraph (a)(1) not paragraph (a)(4). — Traffic citation which charged the defendant with ‘‘D.U.I in violation of Code Section 40-6-391’’ was adequate for prosecution under the less safe standard of paragraph (a)(1) of O.C.G.A. § 40-6-391 but was inadequate to prosecute under paragraph (a)(4) of O.C.G.A. § 40-6-391. Power v. State, 231 Ga. App. 335, 499 S.E.2d 357 (1998). Paragraph (a)(4) (now (a)(5)) of O.C.G.A. § 40-6-391 creates no presumption of intoxication, but merely proscribes certain conduct. Cunningham v. State, 255 Ga. 35, 334 S.E.2d 656 (1985); Mosley v. State, 185 Ga. App. 610, 365 S.E.2d 451 (1988); Koulianos v. State, 192 Ga. App. 90, 383 S.E.2d 642 (1989). Paragraph (a)(4) (now (a)(5)) of O.C.G.A. § 40-6-391 defines a specific act as criminal rather than raising a presumption of intoxication. Hudgins v. State, 176 Ga. App. 719, 337 S.E.2d 378 (1985). In an accusation charging a violation of paragraph (a)(5) of O.C.G.A. § 40-6-391, 288 use of the words ‘‘alcohol concentration’’ did not import into the accusation an unnecessarily minute description of a necessary fact. Mitchell v. State, 269 Ga. 378, 497 S.E.2d 566 (1998). Use of presumptions established by § 40-6-392. — Presumption of sobriety contained in O.C.G.A. § 40-6-392(b)(1) is irrelevant when the ultimate issue before the jury is the defendant’s impaired ability to drive as the result of being under the influence of a drug. Perano v. State, 167 Ga. App. 560, 307 S.E.2d 64 (1983). Commission of the crime of driving under the influence (DUI) by violating paragraph (a)(1), (a)(2), or (a)(3) of O.C.G.A. § 40-6-391 may include as an element of proof thereof, those presumptions or inferences which are established by paragraph (b)(1), (b)(2), or (b)(3) (now paragraph (b)(1) or (b)(2)) of O.C.G.A. § 40-6-392. The crime of DUI by violating paragraph (a)(4) (now (a)(5)) of O.C.G.A. § 40-6-391 differs only in that proof merely of the commission of a proscribed specific act is sufficient without resort to any inference or presumption. Hogan v. State, 178 Ga. App. 534, 343 S.E.2d 770 (1986). Criminal defendant was not entitled to jury instructions based on the presumptions in O.C.G.A. § 40-6-392 when the where defendant was on trial for vehicular homicide, and evidence of the defendant’s blood-alcohol level was not admitted to show that the defendant was driving under the influence but was admitted as a circumstance of the defendant’s arrest for vehicular homicide through reckless driving. Collum v. State, 195 Ga. App. 42, 392 S.E.2d 301 (1990). Trial court did not err by failing to give the jury the defendant’s requested instruction on the statutory presumption of sobriety as set forth in O.C.G.A. § 40-6-392(b)(1) because the defendant’s request was predicated upon the driving under the influence (DUI) less safe count of the indictment, of which the jury found the defendant not guilty; O.C.G.A. § 40-6-392(b)(1) applied only to DUI less safe violations and did not entitle the defendant to a presumption of sobriety with respect to the defendant’s reckless driving violation. Travis v. State, 314 Ga. App. 280, 724 S.E.2d 15 (2012). 40-6-391 Impaired driving ability is element. — Under paragraph (a)(2) of O.C.G.A. § 40-6-391, impaired driving ability is an element of the crime that the state must prove to obtain a conviction. Kevinezz v. State, 265 Ga. 78, 454 S.E.2d 441 (1995). Impaired driving ability not element under paragraph (a)(4) (now (a)(5)). — Impaired driving ability is not a fact necessary to constitute the crime established in paragraph (a)(4) (now (a)(5)) of O.C.G.A. § 40-6-391. Lester v. State, 253 Ga. 235, 320 S.E.2d 142 (1984). Impaired driving ability is not an element of the offense of driving under the influence of marijuana or a controlled substance under paragraph (a)(5) (now (a)(6)) of O.C.G.A. § 40-6-391. Ryals v. State, 215 Ga. App. 51, 449 S.E.2d 865 (1994). Same physical condition. — Phrase ‘‘driving under the influence,’’ with respect to both alcohol and drugs, and the phrase ‘‘to the extent it is less safe for the person to drive’’ are not two separate elements; but are equivalent concepts describing the same physical condition. Kevinezz v. State, 265 Ga. 78, 454 S.E.2d 441 (1995). Double jeopardy. — Because the trial court’s grant of a new trial stemmed from trial error, the defendant could not be retried on an offense of per se DUI, given that the defendant was adjudged not guilty of that charge based upon the insufficiency of the evidence; thus, the trial court erred in denying the plea in bar. Shah v. State, 288 Ga. App. 788, 655 S.E.2d 347 (2007). Trial court erred in dismissing the defendant’s charge for DUI, O.C.G.A. § 40-6-391(k), on double jeopardy grounds under O.C.G.A. § 16-1-7(b) based on the prior disposal online of a separate seat belt citation because there was no showing that the solicitor had actual knowledge of the DUI charge at the time the seat belt charge was handled. State v. Garlepp, 338 Ga. App. 788, 790 S.E.2d 839 (2016). Multiple convictions based upon same incident. — Since a defendant cannot be convicted of more than one offense if the offenses are the same in law and fact, a defendant cannot be convicted of both driving under the influence and driv- 289 General Consideration (Cont’d) ing with a blood alcohol level of at least .12% when both convictions are based on the same incident of driving under the influence. Sanders v. State, 176 Ga. App. 869, 338 S.E.2d 5 (1985). When a defendant was convicted of driving under the influence (DUI), in violation of paragraph (a)(1) of O.C.G.A. § 40-6-391, and driving with a blood-alcohol concentration in excess of .12 grams, in violation of paragraph (a)(4) (now (a)(5)), the court was not authorized to enter convictions on both DUI charges since the convictions were predicated on the same conduct. Love v. State, 195 Ga. App. 392, 393 S.E.2d 520 (1990). Defendant’s convictions for operating a motor vehicle under the influence of alcohol while having a probationary license and driving under the influence of alcohol could not both stand since, under the facts, the latter was a lesser included offense in the violation of the probationary license offense. Williams v. State, 223 Ga. App. 209, 477 S.E.2d 367 (1996). Defendant could be convicted on both felony possession of methamphetamine and driving under the influence of methamphetamine, a misdemeanor; there is no basis for dismissing a felony based on a misdemeanor conviction at common law, and such a result would defy common sense. Helmeci v. State, 230 Ga. App. 866, 498 S.E.2d 326 (1998). Under the plain language of O.C.G.A. § 40-5-63(a), because the underlying DUI convictions pursuant to O.C.G.A. § 40-6-391 did not have to result from separate arrests or separate and isolated incidents, the Department of Driver Services could suspend a driver’s license based upon two separate DUI convictions resulting from a single incident. Dozier v. Jackson, 282 Ga. App. 264, 638 S.E.2d 337 (2006). Separate offenses. — Defendant’s prosecution for driving under the influence and driving with .12% alcohol level did not result in the defendant’s being placed in jeopardy twice for the same offense; the two offenses are separate crimes and upon conviction for the latter, the defendant could not also be convicted 40-6-391 for the former. Hadden v. State, 180 Ga. App. 496, 349 S.E.2d 770 (1986). Defendant’s acquittal on a charge of driving under the influence on August 6, 1987, did not bar a subsequent prosecution for driving under the influence on November 2, 1987, where neither of the accusations stated that the date of the alleged offenses was a material averment and the state could prove their commission at any time within the two-year statute of limitations. Sandner v. State, 193 Ga. App. 62, 387 S.E.2d 27 (1989). Simple battery charge did not ‘‘arise from the same conduct’’ as a driving under the influence (DUI) charge, so as to come within the prohibition of the multiple prosecution bar, since the battery occurred 40 minutes after the defendant’s arrest for DUI and at a different location, the officer who made the DUI arrest was not the same person allegedly struck by the defendant, and the DUI involved the defendant’s operation of a motor vehicle, but the battery did not. State v. Littler, 201 Ga. App. 527, 411 S.E.2d 522 (1991). Lesser included offense. — DUI accusation must allege harm or danger in order to render reckless conduct a lesser included offense. Barber v. State, 204 Ga. App. 94, 418 S.E.2d 436 (1992). Improper lane change, driving without headlights, and driving under the influence of alcohol (DUI) convictions did not merge because the facts alleged in the accusation with regard to the DUI charge were not also sufficient to establish the lesser offenses of improper lane change and driving without headlights. Parker v. State, 249 Ga. App. 530, 549 S.E.2d 154 (2001). Public drunkenness is not, as matter of fact or law, a lesser included offense of driving under the influence of alcohol to the extent it is less safe to drive. State v. Tweedell, 209 Ga. App. 13, 432 S.E.2d 619 (1993). When person is under the influence. — Person is under the influence of intoxicating liquor when it appears that it is less safe for such person to operate a motor vehicle than it would be if the person were not so affected. Cargile v. State, 244 Ga. 871, 262 S.E.2d 87 (1979). Trial court does not err in charging the 290 jury that the jury is authorized to find a driver guilty if the jury finds the driver operated a motor vehicle while under the influence of alcohol to the extent that the driver was a ‘‘less safe driver,’’ instead of charging that the use of alcohol must have rendered the driver ‘‘incapable of safely driving.’’ Jones v. State, 168 Ga. App. 106, 308 S.E.2d 209 (1983). Separate sentences for per se and less safe DUI. — Imposing separate sentences for both driving under the influence per se, O.C.G.A. § 40-6-391(a)(5), and driving under the influence less safe, O.C.G.A. § 40-6-391(a)(1), was improper, and since the conviction based on O.C.G.A. § 40-6-391(a)(5) posed the more serious risk of injury to property or the public, that conviction was affirmed; a conviction under O.C.G.A. § 40-6-391(a)(5) did not require proof of impaired driving ability, so even if the results of the field sobriety tests should have been excluded, it was highly probable that the error did not contribute to the judgment since the breath test results, which were not challenged on appeal, provided sufficient proof of the per se violation, and, thus, any error in denying the defendant’s motion to suppress the results of the field sobriety tests was harmless. Partridge v. State, 266 Ga. App. 305, 596 S.E.2d 778 (2004). Alcohol concentration 0.10 grams or more within three hours after driving. — Paragraph (a)(5) of O.C.G.A. § 40-6-391 declaring a person per se DUI if an individual’s alcohol concentration is 0.10 grams or more at any time within three hours after driving does not require that the person be tested within three hours; it need be established only that the individual’s alcohol concentration was 0.10 grams or greater during the three-hour period after the individual ceased driving. Yarbrough v. State, 241 Ga. App. 777, 527 S.E.2d 628 (2000). When operator under influence. — An operator of a motor vehicle on the public highway of this state is under the influence of intoxicating liquor when the operator is so affected by intoxicating liquor as to make it less safe for the operator to operate such a vehicle than it would be if the operator was not affected by such 40-6-391 intoxicating liquor. Sims v. State, 92 Ga. App. 169, 88 S.E.2d 186 (1955) (decided under former Code 1933, § 68-307). Degree of driver incapacity required for conviction. — It is not necessary that the defendant be so under the influence as to be incapable of driving. It is necessary only that the defendant be under the influence to a degree which renders the defendant less safe or incapable of driving safely. Howell v. State, 179 Ga. App. 632, 347 S.E.2d 358 (1986). Presence of alcohol in defendant’s body does not, by itself, support inference that the defendant’s driving was impaired. — To win a conviction for driving under the influence under O.C.G.A. § 40-6-391(a)(1), the ‘‘less safe driver’’ statute, the state must prove that the defendant had impaired driving ability as a result of drinking alcohol; impaired driving ability depends solely upon an individual’s response to alcohol and because individual responses to alcohol vary, the presence of alcohol in a defendant’s body, by itself, does not support an inference that the defendant was an impaired driver. Baird v. State, 260 Ga. App. 661, 580 S.E.2d 650 (2003). Probable cause needed to conduct an arrest for DUI requires that the officer have knowledge or reasonably trustworthy information that a suspect was actually in physical control of a moving vehicle, while under the influence of alcohol to a degree which renders the suspect incapable of driving safely; mere presence of alcohol is not the issue because in a less safe case, the state must prove that the defendant had impaired driving ability as a result of drinking alcohol and it is not necessary for an officer to give the officer’s opinion or state specifically that a defendant was a less safe driver. State v. Sanders, 274 Ga. App. 393, 617 S.E.2d 633 (2005). Mere occupation of parked automobile while under the influence of alcohol is not a crime. Ferguson v. City of Doraville, 186 Ga. App. 430, 367 S.E.2d 551 (1988), overruled on other grounds, Vogtle v. Coleman, 259 Ga. 115, 376 S.E.2d 861 (1989). Operating vehicle for only few yards while intoxicated. — It would make no difference to one charged with 291 General Consideration (Cont’d) operating an automobile over a public highway of this state while under the influence of intoxicating liquor that one had just gotten behind the wheel of the car and had gone only a few yards when one was stopped by the officers and arrested. Such an act would come within the meaning of the word ‘‘operation,’’ prohibiting the above offense. Austin v. State, 47 Ga. App. 191, 170 S.E. 86 (1933), overruled on other grounds, Harper v. State, 91 Ga. App. 456, 86 S.E.2d 7 (1955) (decided under former Code 1933, § 68-307). Person under influence steering pushed or towed vehicle. — One who, while under the influence of intoxicants, steers a vehicle which is unable to move under the vehicle’s own power, while being pushed or towed, violates Ga. L. 1953, p. 556 (see O.C.G.A. § 40-6-391). Harris v. State, 97 Ga. App. 495, 103 S.E.2d 443 (1958), overruled on other grounds, New v. State, 171 Ga. App. 392, 319 S.E.2d 542 (1984) and Luke v. State, 177 Ga. App. 518, 340 S.E.2d 30 (1986) (decided under Ga. L. 1953, Nov.-Dec. Sess., p. 556). Steering towed vehicle sufficient for conviction. — Defendant could be convicted of driving under the influence of alcohol even though the vehicle the defendant was steering was being towed. Bridgers v. State, 213 Ga. App. 157, 444 S.E.2d 330 (1994). Public versus private road. — O.C.G.A. § 40-6-391(a)(5) provided that it was unlawful for any person to drive or be in actual physical control of any moving vehicle with a blood alcohol level of 0.08 or more and drew no distinction between driving on public roads versus private thoroughfares; thus the defendant had no immunity from prosecution for driving under the influence because the act was committed on private property. Madden v. State, 252 Ga. App. 164, 555 S.E.2d 832 (2001). Roadblocks used to identify licenses, insurances, and sobriety. — When the defendant was convicted of less-safe DUI under O.C.G.A. § 40-6-391, the trial court did not err in denying the defendant’s motion to suppress the results of breath and blood tests because the 40-6-391 daylight roadblock was well-identified as a police checkpoint for the stated and authorized purpose of checking driver’s licenses, insurance, and driver sobriety. Clark v. State, 318 Ga. App. 873, 734 S.E.2d 839 (2012). Pedestrian under the influence. — As a matter of fact or of law, the offense of being a pedestrian under the influence is not a lesser included offense of the offense of driving under the influence. Dickson v. State, 167 Ga. App. 685, 307 S.E.2d 267 (1983). Defendant charged with permitting an intoxicated driver to drive could not be convicted unless it was proved that the driver violated O.C.G.A. § 40-6-391 governing driving under the influence; thus, the prosecution was a ‘‘criminal action . . . arising out of acts’’ in alleged violation of that section and admissibility of the results of an intoximeter test given to the driver would be governed by O.C.G.A. § 40-6-392. Munda v. State, 172 Ga. App. 857, 324 S.E.2d 799 (1984). When source of alcohol was prescription drug. — When the defendant contended that the defendant’s conviction could not stand, relying upon the state’s failure to rebut the defendant’s contention that prior to the time of the defendant’s arrest, the defendant had been taking a prescription drug, the major component of which was alcohol, it was found that a rational trier of fact could reasonably have found from the evidence adduced at trial enough proof of the defendant’s guilt beyond a reasonable doubt. Kimberly v. State, 180 Ga. App. 521, 349 S.E.2d 489 (1986). Conviction proper though found ‘‘not unsafe.’’ — O.C.G.A. § 40-6-391 simply requires a finding that a person was a less safe driver than the person would have been if the person were not under the influence of alcohol, and a jury could and did properly find that the defendant’s driving, although not unsafe, violated O.C.G.A. § 40-6-391. Jones v. State, 207 Ga. App. 469, 428 S.E.2d 402 (1993). Involuntary manslaughter proven. — One who, while violating this section, drives so dangerously or recklessly that, as a result of that person’s intoxication, the person unintentionally kills another 292 human being is guilty of involuntary manslaughter in the commission of an unlawful act. French v. State, 99 Ga. App. 149, 107 S.E.2d 890 (1959) (decided under Ga. L. 1953, Nov.-Dec. Sess., p. 556). Lesser included offense of vehicular homicide. — Offense of driving under the influence was a lesser included offense of first degree vehicular homicide and conviction of both offenses was proscribed. Duncan v. State, 183 Ga. App. 368, 358 S.E.2d 910 (1987). Reckless conduct. — Since reckless conduct requires harm or danger to ‘‘another person,’’ an element not required by O.C.G.A. § 40-6-391 to be alleged and proven, it is not a lesser included offense of driving under the influence as a matter of law. Whiteley v. State, 188 Ga. App. 129, 372 S.E.2d 296, cert. denied, 188 Ga. App. 913, 372 S.E.2d 296 (1988); Cooney v. State, 205 Ga. App. 385, 422 S.E.2d 286 (1992). Reckless conduct was not a lesser included crime of driving under the influence as a matter of fact since the accusation included no allegation of harm or danger to another person and there was no proof of such at trial. Whiteley v. State, 188 Ga. App. 129, 372 S.E.2d 296, cert. denied, 188 Ga. App. 913, 372 S.E.2d 296 (1988); Cooney v. State, 205 Ga. App. 385, 422 S.E.2d 286 (1992). Arrest as prerequisite. — O.C.G.A. § 40-5-55(a), as the statute now stands, provides that consent is implied only if a person is arrested for a violation of O.C.G.A. § 40-6-391. Buchanan v. State, 264 Ga. App. 148, 589 S.E.2d 876 (2003). Warrantless arrest. — When obtaining a warrant to arrest the defendant for driving under the influence would have required at least two hours, during which time physical evidence of the defendant’s alleged intoxication would dissipate, the warrantless arrest was proper under subsection (a) of O.C.G.A. § 40-6-391. State v. Fleming, 202 Ga. App. 774, 415 S.E.2d 513 (1992). Obligation not to leave accident scene. — Defendant’s conviction for a per se driving under the influence violation was upheld on appeal and no unlawful seizure of the defendant occurred at the collision scene the defendant caused since 40-6-391 the defendant was obligated not to leave the scene of the accident regardless of whether an officer told the defendant not to leave. Stadnisky v. State, 285 Ga. App. 33, 645 S.E.2d 545 (2007). Probable cause for arrest. — As to the question of whether the arrest of a defendant for the offense of driving under the influence is made with probable cause, the question is whether the officer at the time of the defendant’s arrest has knowledge or reasonably trustworthy information that: (1) the defendant was in actual physical control of a moving vehicle; (2) while under the influence of any drug; (3) to a degree which renders the defendant incapable of driving safely. Griggs v. State, 167 Ga. App. 581, 307 S.E.2d 75 (1983). There was probable cause to arrest the defendant for a violation of O.C.G.A. § 40-6-391(a) when the officer’s initial approach was a first level police-citizen encounter and was solely to determine if the defendant was in need of assistance, when the officer then noted that the defendant was unsteady on the defendant’s feet, the defendant’s voice was slurred, the defendant’s eyes were red and glassy, and the defendant smelled strongly of alcoholic beverage, and when the defendant admitted driving the vehicle the officer had observed abandoned in a ditch, and had consumed several beers and gave an implausible explanation for the accident. Childress v. State, 251 Ga. App. 873, 554 S.E.2d 818 (2001). Although a police officer who stopped the defendant for speeding did not conduct field sobriety tests after the officer noticed that the defendant had bloodshot, glassy eyes and smelled alcohol on the defendant’s breath, the officer had probable cause to arrest the defendant for driving under the influence of alcohol because of the defendant’s condition and the fact that an alco-sensor test the defendant agreed to take showed the presence of alcohol, and the appellate court reversed the trial court’s judgment finding that the officer did not have probable cause to arrest the defendant and granting the defendant’s motion to suppress evidence resulting from the defendant’s arrest. State v. Sledge, 264 Ga. App. 612, 591 S.E.2d 479 (2003). 293 General Consideration (Cont’d) Police officer who saw the defendant standing over a motorcycle that was involved in an accident and detected a strong smell of alcohol coming from the defendant had probable cause to believe the defendant violated O.C.G.A. § 40-6-391(a) by driving a motor vehicle under the influence of alcohol to the extent it was less safe for the defendant to drive, and the trial court properly denied the defendant’s motion in limine to exclude testimony regarding the results of a blood test the defendant took after the officer informed the defendant of the defendant’s rights under Georgia’s implied consent statute. Oliver v. State, 268 Ga. App. 290, 601 S.E.2d 774 (2004). Undisputed testimony from an officer, who had extensive experience in DUI cases, that the defendant admitted to drinking, had a strong odor of alcohol on the defendant’s person, and had glossy eyes, provided sufficient probable cause to warrant an arrest for DUI despite the fact that the officer failed to have an independent recollection of the field sobriety tests the officer administered. Frederick v. State, 270 Ga. App. 397, 606 S.E.2d 615 (2004). Suppression motion was properly denied as there was probable cause to arrest a defendant for driving under the influence after: (1) the defendant was stopped for speeding; (2) an officer noticed that the defendant’s eyes were bloodshot, speech was slow, and that the defendant smelled of alcohol; and (3) field sobriety tests indicated that the defendant was under the influence of alcohol. Moody v. State, 273 Ga. App. 670, 615 S.E.2d 803 (2005). Despite the defendant’s claim that an officer’s detention was illegal and thus, any statement uttered while detained should have been suppressed, suppression of that statement was properly denied, given that: (1) the officer encountered the defendant after responding to a 9-1-1 call reporting a crime at a specific location; and (2) the officer’s personal observations, when coupled with the defendant’s admission as to being drunk and driving a car onto the curb, as the 9-1-1 dispatcher had stated, supplied the officer with probable 40-6-391 cause to arrest the defendant. Moore v. State, 281 Ga. App. 141, 635 S.E.2d 408 (2006). There was probable cause to arrest a defendant for driving under the influence less safe under O.C.G.A. § 40-6-391 when an officer smelled alcohol on the defendant’s breath and when the defendant admitted to having been drinking. Therefore, no basis for excluding the result of a blood-alcohol test to which the defendant subsequently consented arose as the fruit of the poisonous tree. Hazley v. State, 289 Ga. App. 558, 657 S.E.2d 628 (2008). Although there was evidence supporting the trial court’s finding that there was not probable cause to arrest the defendant for driving under the influence (DUI)-less safe, there was ample evidence to support probable cause to arrest the defendant for DUI per se. The results of two breath tests, and the defendant’s admission that the defendant had three to four drinks prior to driving and that the defendant had consumed the last of these about 30 minutes before the traffic stop established a reasonable probability that the defendant was in violation of O.C.G.A. § 40-6-391(a)(5). State v. Rish, 295 Ga. App. 815, 673 S.E.2d 259, cert. denied, No. S09C0911, 2009 Ga. LEXIS 362 (Ga. 2009). Officer’s observations that a defendant was unsteady, smelled of alcohol, had glassy and blood-shot eyes, had marijuana in the defendant’s possession, and was driving at night while playing music loud enough to be heard almost a mile away, gave the officer probable cause to arrest the defendant for DUI in violation of O.C.G.A. § 40-6-391(a)(5). Brown v. State, 302 Ga. App. 272, 690 S.E.2d 907 (2010). Based on the evidence presented, the combination of the observed speed, the defendant’s admitting that the defendant had been consuming alcohol, the odor of alcohol coming from the defendant, the condition of the defendant’s eyes, the results of the AlcoSensor being positive, and the horizontal gaze nystagmus test results all provided probable cause for the arrest. Drawing all permissible inferences from the evidence in favor of the trial court’s ruling, the trial court did not err by finding sufficient probable cause to sup- 294 port the defendant’s arrest for driving under the influence to the extent that the defendant was less safe to drive. Jaffray v. State, 306 Ga. App. 469, 702 S.E.2d 742 (2010). Officer was entitled to qualified immunity as to false arrest claim of arrestee arrested for driving under the influence because it was not clearly established that probable cause was lacking since, inter alia, the arrestee told the officer the arrestee had consumed at least two beers earlier in the evening, and admitted that the arrestee began changing lanes and abruptly swerved back into the original lane. Bannister v. Conway, No. 1:12-CV-1487-TWT, 2013 U.S. Dist. LEXIS 152569 (N.D. Ga. Oct. 23, 2013). Cash bond. — When a person is arrested by a state patrolman inside a municipality for driving under the influence, a deputy sheriff, even without authorization from the court, may accept a cash bond; the trial court, as a result, has the authority to order the cash bond forfeited. Wilson v. State, 167 Ga. App. 421, 306 S.E.2d 704 (1983). Venue. — Exact location of operating a motor vehicle under influence of an intoxicant is not a material element of an offense under O.C.G.A. § 40-6-391 and the accusation is sufficiently certain if it charges that the offense was committed in a particular county. Felchlin v. State, 159 Ga. App. 120, 282 S.E.2d 743 (1981). While the phrase ‘‘as prosecuting attorney for the county and state aforesaid’’ sufficiently established venue to support a violation of O.C.G.A. § 40-6-391(a)(1), the state’s failure to sufficiently allege venue in order to sustain a second count, charging a violation of § 40-6-391(a)(5), supported the defendant’s motion to quash the second count and reversal of the defendant’s conviction on that count. Werner v. State, 280 Ga. App. 853, 635 S.E.2d 234 (2006). Appeals court rejected the defendant’s claim that the accusation failed to adequately charge venue as a charge of DUI incorporated the words ‘‘Henry County’’ in the heading by using the phrase ‘‘as prosecuting attorney for the county and state aforesaid’’ in the body of the accusation; but the court warned the state against 40-6-391 such practice as the solicitor could easily devise forms which stated with clarity the county in which the offense allegedly occurred, and thereby avoid the costs which resulted from having to repeatedly defend the type of challenge the defendant raised. Gordy v. State, 287 Ga. App. 459, 651 S.E.2d 471 (2007), cert. denied, No. S07C1866, 2008 Ga. LEXIS 128 (Ga. 2008). Evidence of highway number insufficient proof of venue. — In a DUI case under O.C.G.A. § 40-6-391(a)(1), the state failed to prove that venue was proper in Fayette County: the evidence showed only that the defendant was stopped on Highway 138 by a Fayette County Sheriff ’s deputy, which was insufficient to prove venue; because DUI elements were established by the evidence, retrial was permitted. Smith v. State, 345 Ga. App. 43, No. A18A0800, 2018 Ga. App. LEXIS 163 (2018). Removal to federal court disallowed. — When a substitute rural mail carrier employed by the United States Postal Service, while delivering mail for the United States Postal Service, was arrested and charged with driving under the influence of alcohol pursuant to O.C.G.A. § 40-6-391, the carrier’s petition to remove the pending state criminal prosecution to a federal district court was summarily dismissed as there was no causal connection between the carrier’s official acts and the criminal allegations the carrier was charged with under state law. Georgia v. Waller, 660 F. Supp. 952 (M.D. Ga. 1987). Transfer of case involving juveniles to superior court. — Evidence that a juvenile had a history of using marijuana and other drugs, had used marijuana before the juvenile lost control of a car the juvenile was driving while racing another car on a public street, causing a multi-car collision in which two people died, had challenged other people to automobile races on several occasions, violated the conditions of the juvenile’s driver’s license by driving with a non-family member, and used drugs after the accident was sufficient to support the juvenile court’s judgment that the juvenile was not amenable to treatment in the juvenile court system 295 General Consideration (Cont’d) and that the interests of the juvenile and the community would be better served if the case was transferred to the superior court. In the Interest of W.N.J., 268 Ga. App. 637, 602 S.E.2d 173 (2004). Conviction for DUI in one county bars prosecution in other. — When a motorist is charged with speeding and driving under the influence in two counties, the motorist may be tried and convicted in both counties for speeding, but a conviction for driving under the influence in one county will bar prosecution in the other as this charge arises out of the same conduct in both counties. State v. Willis, 149 Ga. App. 509, 254 S.E.2d 743 (1979). Prosecution of new offense time-barred. — Filing of a formal accusation beyond the applicable limitations period barred the prosecution for a violation of paragraph (a)(4) of O.C.G.A. § 40-6-391, brought two months after the original charge of a violation of paragraph (a)(1) of O.C.G.A. § 40-6-391, notwithstanding the fact that the new paragraph (a)(4) (now (a)(5)) of O.C.G.A. § 40-6-391 offense may have stemmed from the same conduct as the original charge. State v. Rustin, 208 Ga. App. 431, 430 S.E.2d 765 (1993). Defendant’s plea of nolo contendere waived any defenses and objections to the defendant’s conviction for driving under the influence of drugs when the plea was voluntarily entered as shown by the defendant’s ratification thereof by entering the plea on the back of the uniform traffic citation and signing the defendant’s name. Moffett v. State, 228 Ga. App. 73, 491 S.E.2d 126 (1997). Challenge to procedures used in reading the defendant the statutory implied consent warning and the proper working of the Intoxilyzer 5000 machine should have been appropriately raised by a motion in limine, not a motion to suppress. Goddard v. State, 244 Ga. App. 730, 536 S.E.2d 160 (2000). Tort duty invocable against police officer. — Law enforcement officer owes a tort duty to a member of the general public injured by a drunk driver when the officer allows the noticeably intoxicated 40-6-391 driver to continue operating a motor vehicle. Landis v. Rockdale County, 206 Ga. App. 876, 427 S.E.2d 286 (1993). Tort duty not invocable against police officer. — Deputy sheriff was not liable to the widow of a motorist killed in a collision with a drunk driver whom the deputy had failed to arrest or otherwise restrain from driving; although the deputy may have been present at the scene of the crime in that the deputy observed an intoxicated driver, the deputy’s duty to enforce drunk driving laws was to the public in general, not specifically to the motorist who was killed hours later in a collision with the intoxicated driver at another location. Landis v. Rockdale County, 212 Ga. App. 700, 445 S.E.2d 264 (1994). When an officer from one agency released a motorist without conducting a complete investigation, if the officers from another jurisdiction have reasonable suspicion that the defendant was driving under the influence, the fact that the first officer chose not to investigate that issue does not deprive the other officers of the officer’s independent authority to investigate. State v. Gehris, 242 Ga. App. 384, 528 S.E.2d 300 (2000), overruled on other grounds by Zilke v. State, 299 Ga. 232, 787 S.E.2d 745 (2016). Prosecutor’s closing argument did not violate prohibition against golden rule arguments. — Prosecutor’s remarks during a DUI offense did not violate the prohibition against golden rule arguments by asking the jurors to put themselves in the position of a victim since it is not improper for the state to appeal to the jury to convict for the safety of the community or to curb an epidemic of violence in the community. Nor is it improper for the prosecutor to emphasize to the jury the jury’s responsibility to enforce the law. Coghlan v. State, 319 Ga. App. 551, 737 S.E.2d 332 (2013). Mistrial properly denied. — Because the defendant was not prejudiced by a challenged juror’s conduct in communicating with a state witness, namely, a police officer as: (1) the alleged improper communication was innocent; (2) the case was never discussed; and (3) once the involvement was discovered, the conversation 296 immediately ended; hence, the trial court did not abuse the court’s discretion in denying a mistrial. Duncan v. State, 281 Ga. App. 270, 635 S.E.2d 875 (2006). New trial unwarranted when counsel’s failure to object to evidence of prior DUI conviction did not result in prejudice. — Defendant’s ineffective assistance of counsel claim did not warrant a new trial because sufficient evidence of the defendant’s intoxication was presented in the record, and the defendant failed to show prejudice resulting from trial counsel’s failure to object to the defendant’s admission to having a prior DUI conviction, even though it was error for trial counsel not to object. Thomas v. State, 288 Ga. App. 827, 655 S.E.2d 701 (2007). Continuance of case properly denied. — Trial court did not abuse the court’s discretion by denying the defendant’s request for a continuance because the court had granted a certificate pursuant to O.C.G.A. § 24-13-94 to permit the defense an opportunity to obtain the information and witnesses from the breathalyzer manufacturer, set the case with enough time for the defense to do so, and, after the Kentucky court issued an order denying the request, which order was entitled to full faith and credit, required the defendant to proceed to trial. Phillips v. State, 324 Ga. App. 728, 751 S.E.2d 526 (2013). Blood test results suppressed properly. — Before an unconscious person could have been deemed not to have withdrawn the implied consent to blood alcohol testing, that implied consent must have first existed as provided by O.C.G.A. § 40-5-55(a); consent was implied only if a person was arrested for a violation of O.C.G.A. § 40-6-391, and when the defendant was not arrested for any such violation before the blood test was conducted, a trial court properly suppressed the results of the blood test. State v. Bass, 273 Ga. App. 540, 615 S.E.2d 589 (2005). Under Ga. Const. 1983, Art. I, Sec. I, Para. XIII, the defendant could not suppress the evidence of the blood test taken while the defendant was under suspicion for driving under the influence under O.C.G.A. § 40-6-391; because the state 40-6-391 complied with the statutory implied consent requirements, the defendant was deemed under the implied consent provisions of O.C.G.A. § 40-5-55 to have given the defendant’s consent to a test of the defendant’s blood. Meiklejohn v. State, 281 Ga. App. 712, 637 S.E.2d 117 (2006). Blood test properly admitted after defendant requested breath test. — After a defendant’s van hit a utility pole, an officer did not violate O.C.G.A. § 40-6-392(a)(3) by failing to reasonably accommodate the defendant’s request for a breath test as the officer believed that the defendant could not complete a breath test due to serious injuries to the defendant’s mouth and jaw. Since the defendant was not in police custody, but was a hospital patient, and consented to a blood test after first requesting a breath test, evidence of the blood test was admissible in a prosecution for driving under the influence. Fowler v. State, 294 Ga. App. 864, 670 S.E.2d 448 (2008), cert. denied, No. S09C0529, 2009 Ga. LEXIS 204 (Ga. 2009). Determination of actual consent required. — Defendant’s driving under the influence case was remanded to the trial court because, in considering the defendant’s motion to suppress, the court failed to address whether the defendant gave actual consent to the procuring and testing of blood, which would require the determination of the voluntariness of the consent under the totality of the circumstances. Williams v. State, 296 Ga. 817, 771 S.E.2d 373 (2015). In a case charging the defendant with driving under the influence (DUI) to the extent it was less safe for the defendant to drive and DUI per se, the motion to suppress the results of the state-administered test of the defendant’s breath was properly granted as the defendant lacked the capacity to consent to the breath test based upon the defendant’s confusion and high level of intoxication; the state was only able to show that the defendant acquiesced to the officer’s request that the defendant submit to a breath test but was unable to show actual consent; and the trial court was not expressly required to address in the court’s order each relevant factor in determining if the defendant’s 297 General Consideration (Cont’d) consent was voluntary. State v. Jung, 337 Ga. App. 799, 788 S.E.2d 884 (2016). Blood draw taken from the defendant, who was charged with DUI (methamphetamine), O.C.G.A. § 40-6-391(a)(6), was suppressed from the evidence because the defendant’s consent was not voluntarily given; the defendant had been injured in a car accident, was pinned to the ground, mumbling, screaming, and vomiting, and was incapable of making a rational decision. State v. Osterloh, 342 Ga. App. 668, 804 S.E.2d 696 (2017). Evidence insufficient to establish coercion as defense. — Appellate court chose not to disturb the jury’s determination that the defendant was not coerced into driving while intoxicated because the defendant admitted that the defendant was not coerced into driving a truck away from a restaurant; the defendant testified that an employee of the restaurant asked the defendant to leave; the defendant drove away to avoid a fight; the defendant had three or four beers before driving the truck; the defendant had a cell phone in the defendant’s possession but the defendant did not attempt to call 9-1-1, nor did the defendant ask the restaurant’s employees to call a cab for the defendant; and the person who was trying to fight the defendant was in the parking lot but was not armed. Hines v. State, 308 Ga. App. 299, 707 S.E.2d 534 (2011). Statute of limitation. — Because DUI was a predicate offense set out in the indictment against the defendant only as an element of the offense of vehicular homicide, in violation of O.C.G.A. § 40-6-393(a), and not as a separate crime for which the defendant risked separate criminal liability, a trial court did not err by denying the defendant’s plea in bar because as a felony offense prosecution on the vehicular homicide counts were commenced within four years after the commission of the crime as required by O.C.G.A. § 17-3-1(c); the expiration of the limitations period for the driving under the influence counts did not preclude a prosecution for vehicular homicide. Leachman v. State, 286 Ga. App. 708, 649 S.E.2d 886 (2007), cert. denied, No. 40-6-391 S07C1816, 2007 Ga. LEXIS 768 (Ga. 2007). Evidence of subsequent DUI arrests admissible. — Evidence that in the seven months after a defendant was arrested for DUI in violation of O.C.G.A. § 40-6-391(a)(1), the defendant drove the defendant’s vehicle twice while under the influence of alcohol to the extent it was less safe for the defendant to drive, was admissible as relevant to the defendant’s bent of mind and course of conduct with respect to DUI. Ayiteyfio v. State, 308 Ga. App. 286, 707 S.E.2d 186 (2011). No provision for judgment notwithstanding the verdict in DUI case. — Trial court did not err in denying the defendant’s motion for judgment notwithstanding the verdict ( JNOV) after the defendant was convicted of driving under the influence to the extent that the defendant was a less-safe driver in violation of O.C.G.A. § 40-6-391(a)(1) because JNOV was not a remedy available in a criminal case. Masood v. State, 313 Ga. App. 549, 722 S.E.2d 149 (2012). Qualified immunity of officer in civil rights claim based on driving under influence arrest. — Officer was entitled to summary judgment based on qualified immunity as to an arrestee’s Fourth Amendment claim regarding the stop of the arrestee’s vehicle because the officer had arguable reasonable suspicion to stop the arrestee since the officer responded to an off-duty officer’s report that the arrestee was driving at an unusual speed and weaving across the road, and the off-duty officer identified the vehicle; also, officers had arguable probable cause to arrest the arrestee for driving under the influence. Jenkins v. Gaither, No. 12-15631, 2013 U.S. App. LEXIS 20296 (11th Cir. Oct. 4, 2013) (Unpublished). Out of time appeal following guilty plea rejected. — Following guilty pleas to first degree homicide by vehicle and possession of an open container, the trial court properly denied the defendant’s motion for an out-of-time appeal finding that the defendant failed to show that the right to an appeal was frustrated by ineffective assistance of counsel since the record showed that the attacks on the guilty plea in the out-of-time appeal were without 298 merit; thus, trial counsel could not have been ineffective in failing to pursue such an appeal. Martin v. State, 329 Ga. App. 10, 763 S.E.2d 363 (2014). Cited in Carter v. State, 38 Ga. App. 182, 143 S.E. 441 (1928); Hixson v. Barrow, 135 Ga. App. 519, 218 S.E.2d 253 (1975); Torley v. State, 141 Ga. App. 366, 233 S.E.2d 476 (1977); Elder v. State, 143 Ga. App. 610, 239 S.E.2d 160 (1977); Howe v. Cofer, 144 Ga. App. 589, 241 S.E.2d 472 (1978); Huff v. State, 144 Ga. App. 764, 242 S.E.2d 361 (1978); Brock v. State, 146 Ga. App. 78, 245 S.E.2d 442 (1978); Garrett v. State, 146 Ga. App. 610, 247 S.E.2d 136 (1978); Cofer v. Crowell, 146 Ga. App. 639, 247 S.E.2d 152 (1978); Keenan v. Buchanan, 148 Ga. App. 279, 251 S.E.2d 120 (1978); Lewis v. State, 149 Ga. App. 181, 254 S.E.2d 142 (1979); State v. Black, 149 Ga. App. 389, 254 S.E.2d 506 (1979); Grizzle v. State, 153 Ga. App. 364, 265 S.E.2d 324 (1980); Vann v. State, 153 Ga. App. 710, 266 S.E.2d 349 (1980); Jackson v. Willis, 2 Bankr. 566 (Bankr. M.D. Ga. 1980); Arnold v. State, 163 Ga. App. 94, 292 S.E.2d 891 (1982); State v. Chumley, 164 Ga. App. 828, 299 S.E.2d 564 (1982); Stewart v. State, 165 Ga. App. 62, 299 S.E.2d 134 (1983); Reliance Ins. Co. v. Bridges, 168 Ga. App. 874, 311 S.E.2d 193 (1983); Wessels v. State, 169 Ga. App. 246, 312 S.E.2d 361 (1983); Steed v. City of Atlanta, 172 Ga. App. 839, 325 S.E.2d 165 (1984); Pfeiffer v. State, 173 Ga. App. 374, 326 S.E.2d 562 (1985); McElroy v. State, 173 Ga. App. 685, 327 S.E.2d 805 (1985); Russell v. State, 174 Ga. App. 436, 330 S.E.2d 175 (1985); Peters v. State, 175 Ga. App. 463, 333 S.E.2d 436 (1985); Atkins v. State, 175 Ga. App. 470, 333 S.E.2d 441 (1985); Melton v. State, 175 Ga. App. 472, 333 S.E.2d 682 (1985); Drayton v. State, 175 Ga. App. 780, 334 S.E.2d 720 (1985); McNair v. State, 177 Ga. App. 502, 339 S.E.2d 773 (1986); Billingslea v. State, 177 Ga. App. 775, 341 S.E.2d 305 (1986); Lovell v. State, 178 Ga. App. 366, 343 S.E.2d 414 (1986); Smith v. State, 180 Ga. App. 620, 349 S.E.2d 754 (1986); Branch v. State, 182 Ga. App. 818, 357 S.E.2d 136 (1987); House v. State, 184 Ga. App. 724, 362 S.E.2d 429 (1987); Williams v. Hart, 83 Bankr. 840 (Bankr. M.D. Ga. 1987); Odom v. State, 185 Ga. App. 40-6-391 496, 364 S.E.2d 626 (1988); Smith v. State, 185 Ga. App. 531, 364 S.E.2d 907 (1988); Brooks v. State, 187 Ga. App. 194, 369 S.E.2d 801 (1988); Hale v. State, 188 Ga. App. 524, 373 S.E.2d 250 (1988); Browning v. State, 188 Ga. App. 591, 373 S.E.2d 654 (1988); Sapp v. State, 188 Ga. App. 700, 374 S.E.2d 114 (1988); State v. Speir, 189 Ga. App. 254, 375 S.E.2d 298 (1988); Harrison v. Brunson, 82 Bankr. 634 (Bankr. S.D. Ga. 1988); Parsons v. State, 190 Ga. App. 803, 380 S.E.2d 87 (1989); Vulcan Life Ins. Co. v. Davenport, 191 Ga. App. 79, 380 S.E.2d 751 (1989); Helms v. State, 191 Ga. App. 283, 381 S.E.2d 428 (1989); Manley v. State, 191 Ga. App. 376, 381 S.E.2d 592 (1989); Corley v. State, 192 Ga. App. 35, 383 S.E.2d 586 (1989); Sturdy v. State, 192 Ga. App. 71, 383 S.E.2d 632 (1989); Griner v. State, 192 Ga. App. 283, 384 S.E.2d 398 (1989); Moore v. Jarvis, 885 F.2d 1565 (11th Cir. 1989); Harbin v. State, 193 Ga. App. 248, 387 S.E.2d 367 (1989); King v. State, 194 Ga. App. 69, 389 S.E.2d 500 (1989); Kolker v. State, 260 Ga. 240, 391 S.E.2d 391 (1990); Lord v. State, 194 Ga. App. 749, 392 S.E.2d 17 (1990); Studebaker’s of Savannah, Inc. v. Tibbs, 195 Ga. App. 142, 392 S.E.2d 908 (1990); Trammell v. State, 196 Ga. App. 540, 396 S.E.2d 286 (1990); Menendez v. Jewett, 196 Ga. App. 565, 396 S.E.2d 294 (1990); Eppinger v. State, 198 Ga. App. 889, 403 S.E.2d 829 (1991); Anderson v. State, 199 Ga. App. 595, 405 S.E.2d 504 (1991); Brantley v. State, 199 Ga. App. 623, 405 S.E.2d 533 (1991); Purser v. State, 201 Ga. App. 839, 412 S.E.2d 869 (1991); Kendrick v. State, 202 Ga. App. 164, 413 S.E.2d 785 (1991); Anderson v. State, 262 Ga. 26, 413 S.E.2d 732 (1992); Bowden v. State, 202 Ga. App. 802, 415 S.E.2d 527 (1992); Gazaway v. State, 207 Ga. App. 641, 428 S.E.2d 659 (1993); Pratt v. State, 208 Ga. App. 617, 431 S.E.2d 397 (1993); Payne v. State, 209 Ga. App. 780, 434 S.E.2d 543 (1993); Cheevers v. Clark, 214 Ga. App. 866, 449 S.E.2d 528 (1994); Martin v. State, 217 Ga. App. 860, 460 S.E.2d 92 (1995); Dooley v. State, 221 Ga. App. 245, 470 S.E.2d 803 (1996); Pitts v. State, 231 Ga. App. 9, 498 S.E.2d 534 (1998); Ballenger Paving Co. v. Gaines, 231 Ga. App. 565, 499 S.E.2d 722 (1998); Radcliffe v. State, 234 Ga. App. 576, 507 299 General Consideration (Cont’d) S.E.2d 759 (1998); In re B.C.G., 235 Ga. App. 1, 508 S.E.2d 239 (1998); Lambropoulous v. State, 234 Ga. App. 625, 507 S.E.2d 225 (1998); Griffin v. State, 242 Ga. App. 878, 531 S.E.2d 752 (2000); Berkow v. State, 243 Ga. App. 698, 534 S.E.2d 433 (2000); Thompson v. State, 243 Ga. App. 878, 534 S.E.2d 151 (2000); Perdue v. Caffey (In re Caffey), 248 B.R. 920 (Bankr. N.D. Ga. 2000); Couch v. State, 246 Ga. App. 106, 539 S.E.2d 609 (2000); Rodriguez v. State, 275 Ga. 283, 565 S.E.2d 458 (2002); Northside Equities, Inc. v. Hulsey, 275 Ga. 364, 567 S.E.2d 4 (2002); State v. Johnson, 257 Ga. App. 162, 570 S.E.2d 627 (2002); Perdue v. State, 256 Ga. App. 765, 578 S.E.2d 456 (2002); Lockett v. State, 257 Ga. App. 412, 571 S.E.2d 192 (2002); Johnson v. State, 261 Ga. App. 633, 583 S.E.2d 489 (2003); Gantt v. State, 263 Ga. App. 102, 587 S.E.2d 255 (2003); Dozier v. Pierce, 279 Ga. App. 464, 631 S.E.2d 379 (2006); Chancellor v. Dozier, 283 Ga. 259, 658 S.E.2d 592 (2008); Brantley v. State, 290 Ga. App. 764, 660 S.E.2d 846 (2008); Dunagan v. State, 283 Ga. 501, 661 S.E.2d 525 (2008); Hernandez v. State, 297 Ga. App. 177, 676 S.E.2d 795 (2009); Eason v. Dozier, 298 Ga. App. 65, 679 S.E.2d 89 (2009); State v. Rowell, 299 Ga. App. 238, 682 S.E.2d 343 (2009); Jacobs v. State, 308 Ga. App. 117, 706 S.E.2d 737 (2011); Smith v. State, 324 Ga. App. 100, 749 S.E.2d 395 (2013); Reed v. Carolina Cas. Ins. Co., 327 Ga. App. 130, 755 S.E.2d 356 (2014); Preston v. State, 327 Ga. App. 556, 760 S.E.2d 176 (2014); State v. Hasson, 334 Ga. App. 1, 778 S.E.2d 15 (2015); State v. Mantooth, 337 Ga. App. 698, 788 S.E.2d 584 (2016); State v. Charles, 344 Ga. App. 456, 810 S.E.2d 627 (2018). Notice Notice of offense. — Notice given that driving under the influence of alcohol is a crime is adequate. Head v. State, 246 Ga. 360, 271 S.E.2d 452 (1980). Citation reciting that the defendant was stopped for driving over the centerline, describing the defendant as a less than safe driver with the smell of alcohol on the defendant’s breath and un- 40-6-391 steady on the defendant’s feet, who failed an alco-sensor test and whose blood alcohol measured .10 percent was sufficient to charge a violation of O.C.G.A. § 40-6-391(a)(1). Shannon v. State, 205 Ga. App. 831, 424 S.E.2d 51, cert. denied, 205 Ga. App. 901, 424 S.E.2d 51 (1992). Provision authorizing punishment for a ‘‘high and aggravated misdemeanor’’ upon a third or subsequent conviction of DUI does not create a separate and independent offense and did not constitute a material allegation in an accusation. State v. Phillips, 206 Ga. App. 421, 425 S.E.2d 412 (1992). Indictment only put the defendant on notice that the defendant could be convicted if the marijuana or cocaine had made the defendant a less safe driver. The indictment did not put the defendant on notice that the defendant could be convicted solely on the physical act of driving with any amount of marijuana or cocaine in the defendant’s blood or urine under O.C.G.A. § 40-6-391(a)(5). Kevinezz v. State, 265 Ga. 78, 454 S.E.2d 441 (1995). Citation was not vague when the citation informed the defendant that the defendant was charged with violating O.C.G.A. § 40-6-391 by driving the defendant’s vehicle under the influence of alcohol and specifically provided that a DUI breath test was administered showing an alcohol level of .17 grams. Shelton v. State, 216 Ga. App. 634, 455 S.E.2d 304 (1995). Accusation charging an offense under O.C.G.A. § 40-6-391 was sufficient even though the accusation did not contain the exact wording of the current section. Wade v. State, 223 Ga. App. 222, 477 S.E.2d 328 (1996). Indictment or accusation charging a defendant with driving under the influence of alcohol or drugs, even if it does not specify to the extent it was less safe for the defendant to drive, is an indictment that charges the defendant with violating paragraph (a)(1), (a)(2), or (a)(3) of O.C.G.A. § 40-6-391; but would not put a defendant on notice that a defendant was convicted under paragraph (a)(4) or (a)(5) of § 40-6-391 which does not contain the phrase ‘‘under the influence’’ and does not require the state to prove impaired driving ability. Power v. State, 231 Ga. App. 335, 499 S.E.2d 357 (1998). 300 Indictment stating that the defendant ‘‘did then and there unlawfully drive a moving vehicle while under the influence of alcohol, so that it was less safe for the defendant to drive, there being not less than .10 percent by weight of alcohol in his blood’’ was sufficient notice of two ways the defendant could be convicted of driving under the influence. Kennon v. State, 232 Ga. App. 494, 502 S.E.2d 330 (1998). Trial court did not err when the court denied the defendant’s motion to quash the defendant’s traffic citation because the citation did not identify the specific subsection of O.C.G.A. § 40-6-391 which the defendant violated. Fluellen v. State, 264 Ga. App. 19, 589 S.E.2d 847 (2003). Trial court properly denied the defendant’s motion to quash count one of the accusation filed against the defendant as: (1) although the accusation did not specify a particular drug that the defendant was alleged to have been driving under, O.C.G.A. § 40-6-391(a)(2) prohibited driving under the influence of any drug; (2) the defendant was informed of the charged offense, and that the defendant would need to meet the charges that the defendant drove while under the influence of amphetamines and cannabinoids; (3) the defendant could not reasonably claim that the defendant was surprised by evidence introduced at trial or was unable to prepare a defense; (4) the defendant did not risk future prosecution for the same offenses; and (5) the defendant was not misled to the defendant’s prejudice by any imperfection in the accusation, and any error was harmless. Buchanan v. State, 264 Ga. App. 148, 589 S.E.2d 876 (2003). Fair construction of defendant’s Uniform Traffic Citation showed that the citation indicated a violation of O.C.G.A. § 40-6-391(a)(5), unlawful alcohol concentration; when the citation showed that the defendant’s breath results were ‘‘.223,’’ and that the defendant was charged with ‘‘DUI,’’ defendant was on adequate notice of a charge of unlawful alcohol concentration. Taylor v. State, 265 Ga. App. 637, 595 S.E.2d 344 (2004). Accusation that charged the defendant, age 19, with being a minor under 18 while driving with an alcohol concentration of 40-6-391 .02 or more was not fatally variant with the proof at tria, because the charge cited O.C.G.A. § 40-6-391, the correct statute under which the defendant was charged, and the defendant could not be surprised with proof of the defendant’s own age. Mills v. State, 271 Ga. App. 506, 610 S.E.2d 80 (2004). Count phrasing sufficiently descriptive. — Accusation was sufficiently descriptive to defeat a motion in arrest of judgment where reference of ‘‘such driving and being in actual physical control’’ incorporated preceding count’s explicit reference to ‘‘actual physical control of a moving vehicle.’’ Jones v. State, 206 Ga. App. 604, 426 S.E.2d 179 (1992). Traffic citation’s notice sufficient. — Defendant’s contention that the state’s failure to recite the words ‘‘to the extent that it was less safe for the person to drive’’ constituted a fatal defect insufficiently alleging the essential elements of O.C.G.A. § 40-6-391 for purposes of notice did not hold when the defendant could not demonstrate any prejudice to oneself. As such, it was enough that the necessary facts could appear in any form, or by fair construction could be found within the terms of the traffic citation, including the mere recital of the statute. Brooks v. State, 207 Ga. App. 477, 428 S.E.2d 357 (1993). Notice of implied consent rights. — Trial court erred in concluding that the state’s breath tests related to a charge of DUI against the defendant were not admissible and had to be suppressed on the ground that a police officer did not read the defendant’s implied consent rights at the scene of the defendant’s arrest in a local park; the defendant was not arrested in the local park for DUI, but, instead, was arrested for criminal trespass and it was not until the defendant was taken to a detention center that the defendant was arrested for DUI, at which time the officer read to the defendant the implied consent rights. State v. Jones, 261 Ga. App. 357, 583 S.E.2d 139 (2003). Because the defendant, who was charged with driving under the influence in violation of O.C.G.A. § 40-6-391, was confused after a police officer read the defendant the implied consent warning, 301 Notice (Cont’d) and the defendant failed to respond to the officer’s request to administer the chemical breath test, this response was tantamount to a refusal. State v. Adams, 270 Ga. App. 878, 609 S.E.2d 378 (2004). Pursuant to O.C.G.A. § 40-5-67.1(d.1), a trial court did not err in denying the defendant’s motion to suppress based upon the officer’s failure to give an implied consent warning before the test was administered because the defendant voluntarily consented to the breath test. Jones v. State, 319 Ga. App. 520, 737 S.E.2d 318 (2013). Trial court erred when the court granted the defendant’s motion to suppress evidence based on the officer adding words to the implied consent notice because the added words did not alter the substance of the notice nor affect the defendant’s consent to testing. State v. Fedrick, 329 Ga. App. 75, 763 S.E.2d 739 (2014). Trial court did not err by refusing to suppress the defendant’s blood-test results based on not being under arrest prior to being read Georgia’s implied consent notice because, although the defendant’s recollection differed from that of the law-enforcement officer, and although defense counsel cross-examined the officer extensively as to alleged inconsistencies in the chronology of events, the officer testified that the officer issued citations to the defendant before reading Georgia’s implied consent notice. Chernowski v. State, 330 Ga. App. 702, 769 S.E.2d 126 (2015). Failure to give notice of implied consent rights. — Trial court did not have to find as a matter of fact that the officer read the implied consent warning before arresting the defendant in order to grant the motion to suppress as the court’s grant of the motion was adequately supported by the state’s failure to meet the state’s burden of proving that the implied consent warning was read after arrest; hence, the state failed to meet the state’s burden because the trial court found the officer’s testimony lacked credibility and there was no other evidence showing that the warning was given after the defen- 40-6-391 dant’s arrest. State v. Stelzenmuller, 285 Ga. App. 348, 646 S.E.2d 316 (2007). Trial court properly granted the defendant’s motion to suppress the results of a state-administered blood test showing that the defendant had marijuana in defendant’s system at the time of a fatal car accident as the testing was obtained by an officer without the officer giving the implied consent notice to defendant. State v. Morgan, 289 Ga. App. 706, 658 S.E.2d 237 (2008), cert. denied, No. S08C1017, 2008 Ga. LEXIS 504 (Ga. 2008). Testing Constitutionality. — Because a defendant was arrested for driving under the influence under O.C.G.A. § 40-6-391 based on probable cause and the state complied with the implied consent requirements of O.C.G.A. § 40-5-55, the defendant could not complain that drug and alcohol testing violated the search and seizure provisions of the Fourth Amendment or the Georgia Constitution because the implied consent statute allowed for the warrantless compelled testing of bodily fluids based on the existence of probable cause but without proof of the existence of exigent circumstances. Cornwell v. State, 283 Ga. 247, 657 S.E.2d 195 (2008). Determination of actual consent required. — Based on the United States Supreme Court decision in Missouri v. McNeely, in which the court rejected a per se rule that the natural metabolization of alcohol in a person’s bloodstream constitutes an exigency justifying an exception to the U.S. Const., amend. 4’s search warrant requirement for nonconsensual blood testing in all driving under the influence cases, the Georgia Supreme Court overruled Strong v. State, 231 Ga. 514 (1973), to the extent that decision holds otherwise. Williams v. State, 296 Ga. 817, 771 S.E.2d 373 (2015). Field sobriety tests were not ‘‘statements’’ and were not inadmissible under the constitution even if the defendant was in custody and had not been read the defendant’s Miranda rights. Morrissette v. State, 229 Ga. App. 420, 494 S.E.2d 8 (1997). Miranda warnings are not required to 302 precede field sobriety tests during routine roadside questioning when the detained driver is not under formal arrest but exhibits many physical manifestations of intoxication amounting to probable cause to arrest. Arce v. State, 245 Ga. App. 466, 538 S.E.2d 128 (2000). Field sobriety tests are not designed to detect the mere presence of alcohol in a person’s system, but to produce information on the question whether alcohol is present at an impairing level such that the driver is less safe within the meaning of O.C.G.A. § 40-6-391(a)(1). Werner v. State, 246 Ga. App. 677, 538 S.E.2d 168 (2000). Because a police officer reasonably suspected that the defendant was intoxicated, the officer had a legal basis for asking the defendant to submit to field sobriety tests without violating the Fourth Amendment; when the defendant refused to take the tests, the evidence was sufficient to find the defendant guilty of driving under the influence to the extent that the defendant was a less safe driver in violation of O.C.G.A. § 40-6-391. Long v. State, 271 Ga. App. 565, 610 S.E.2d 74 (2004). Possibility that officers might have called a tow truck before giving field sobriety tests did not mean that the defendant was in custody after the truck was called, thereby requiring Miranda warnings before the tests were given; the defendant had not known that the tow truck was called and thus there was no basis to believe the detention was not temporary. Grodhaus v. State, 287 Ga. App. 628, 653 S.E.2d 67 (2007), cert. denied, No. S08C0238 2008 Ga. LEXIS 173 (Ga. 2008). Trial court did not err in denying the defendant’s motion to suppress and motion in limine to exclude the defendant’s field sobriety test results because the officers who stopped the defendant’s vehicle were not required to advise the defendant of the defendant’s Miranda rights prior to the field sobriety testing since although the defendant was not free to leave, the defendant was not handcuffed or placed in the patrol car during the investigation, and in addition to informing the defendant of the reason for the stop, the officers 40-6-391 told the defendant that the officers had to wait for a HEAT Unit officer to determine whether the defendant was too impaired to safely operate the defendant’s vehicle; based upon the circumstances, the trial court was authorized to find that a reasonable person would believe that the defendant’s freedom of action was only temporarily curtailed pending further investigation during the traffic stop, and the delay of approximately twenty-five minutes between the initial stop and the HEAT Unit officer’s arrival at the scene did not automatically convert the investigation into a custodial situation. Waters v. State, 306 Ga. App. 114, 701 S.E.2d 550 (2010). Defendant’s motion to suppress evidence obtained on the night of the defendant’s arrest for driving under the influence of alcohol in violation of O.C.G.A. § 40-6-391(a)(1) should not have been granted as the defendant was not in custody for purposes of Miranda during the investigation. State v. Mosley, 321 Ga. App. 236, 739 S.E.2d 106 (2013). Arrest is not prerequisite to chemical test. — Arrest for driving under the influence (DUI) was not a prerequisite for administration of a chemical test. If an officer had reasonable grounds to believe a traffic offense was committed while the defendant was violating DUI laws, a chemical test was proper and admissible. State v. Goolsby, 262 Ga. App. 867, 586 S.E.2d 754 (2003). Requests for chemical tests. — Amendment to O.C.G.A. § 40-5-67.1, effective August 18, 1995, provides that the new implied consent warning requirement applies only as to ‘‘an offense committed on or after April 21, 1995.’’ The applicable law in situations where the request for testing is made regarding an offense occurring before April 21, 1995, includes, inter alia, that a suspect is not entitled to a warning which tracks the exact language of O.C.G.A. § 40-5-67.1; the sufficiency of the warning is to be judged by its content and not its form; and the warning must inform the suspect that the suspect could have an additional test by a qualified person of the suspect’s own choosing. State v. Golub, 220 Ga. App. 810, 470 S.E.2d 331 (1996). 303 Testing (Cont’d) Trial court did not err in granting the defendant’s motion to suppress evidence of a state-administered breath test because the state failed to reasonably accommodate the defendant’s request for an independent blood test; when a officer learned that the defendant did not have sufficient cash for a blood test at one of the recommended hospitals the defendant should have been offered the opportunity to use a telephone to make other arrangements, and the officer’s unilateral determination that the defendant would be unable to pay for the blood test, without confirming the hospitals’ policies regarding payment and without offering to accommodate the defendant in obtaining a method of payment, was insufficient. State v. Davis, 309 Ga. App. 558, 711 S.E.2d 76 (2011). O.C.G.A. § 40-6-392(a)(4), with regard to an independent chemical test of blood, specifies no deadline for requesting full information, no timetable for supplying the information, and no penalty for the state’s failure to produce the information. State v. Thompson, 334 Ga. App. 692, 780 S.E.2d 67 (2015). Chemical test may be requested despite absence of probable cause. — Chemical test may be requested under the implied consent statute even though the arresting officer lacks probable cause to arrest for substance-influenced driving if the officer has at least reasonable grounds to believe that a violation of O.C.G.A. § 40-6-391 has occurred. Whiteley v. State, 188 Ga. App. 129, 372 S.E.2d 296, cert. denied, 188 Ga. App. 913, 372 S.E.2d 296 (1988). ‘‘Unable’’ to provide breath sample equals refusal. — In a prosecution for driving under the influence, when the arresting officer testified that the defendant pretended to, but did not, blow into a breath-alcohol testing machine (which had been tested and was certified as working properly), and the defendant testified as to why the defendant was unable to provide an adequate breath sample, the trial court properly admitted evidence of the defendant’s ‘‘refusal’’ to submit to a breath test. Walker v. State, 262 Ga. App. 40-6-391 872, 586 S.E.2d 757 (2003). Calibration of breath test instrument. — There is a presumption in all cases arising under O.C.G.A. § 40-6-391 that the Director of the State Crime Laboratory has caused the instrument used to administer the breath test to be checked periodically for calibration. Sapp v. State, 184 Ga. App. 527, 362 S.E.2d 406 (1987). Source code for breath test machine not discoverable. — In a driving-while-intoxicated case, the defendant was not entitled to discovery of the ‘‘source code’’ used to program a breath test machine. The defendant did not show that the code was in the possession, custody, or control of the state as required by O.C.G.A. §§ 17-16-1(1) and 17-16-23(b). Hills v. State, 291 Ga. App. 873, 663 S.E.2d 265 (2008). In a DUI case, the state was not required to disclose the computer source code for the Intoxilyzer 5000 used to measure the defendant’s blood alcohol under O.C.G.A. § 40-6-392(a)(4) because the state did not have access to the source code from the Intoxilyzer’s Kentucky manufacturer and had not attempted to gain access to the code. Smith v. State, 325 Ga. App. 405, 750 S.E.2d 758 (2013). Lapse of time between test and violation. — Intoximeter operator’s testimony that the operator conducted an intoximeter test on defendant at 2:49 a.m. and that the results were ‘‘.14 grams per 100 cc’s of blood’’ was sufficient to sustain the defendant’s conviction under paragraph (a)(4) of O.C.G.A. § 40-6-391 even though the operator admitted that the operator was not able to testify as to the defendant’s blood alcohol content level at the time of the violation, 40 minutes earlier. Simon v. State, 182 Ga. App. 210, 355 S.E.2d 120 (1987). Trial court erred in suppressing the defendant’s alcohol test results on the ground that there was no evidence that a blood sample was taken within three hours of the accident allegedly caused by the defendant’s drunken driving; O.C.G.A. § 40-6-391(a)(5) does not require such test to be administered within three hours of the accident. State v. Allen, 256 Ga. App. 798, 570 S.E.2d 34 (2002). Breathalyzer machine test results are based on accepted scientific theory or 304 ‘‘rest upon the laws of nature’’; and, when the statutory requirements for admissibility are met, the results may be admitted into evidence without expert testimony regarding the scientific theory behind the operation of the test. Brown v. State, 202 Ga. App. 371, 414 S.E.2d 505 (1991), cert. denied, 202 Ga. App. 371, 414 S.E.2d 505 (1992). When the jury in a first trial ‘‘rejected’’ breath test results, in the sense that the jury concluded the results were insufficient to prove beyond a reasonable doubt that the defendant had the required alcohol concentration, the jury did not necessarily conclude that the breath test results were wholly lacking in probative value, and when the test results were not the only evidence supporting a less safe driver charge, the state was not precluded by the doctrine of collateral estoppel from introducing evidence of the breath test results in a subsequent trial. Sullivan v. State, 235 Ga. App. 768, 510 S.E.2d 136 (1998). Denial of the defendant’s motion to suppress the results of the breath tests was proper when the evidence showed there was probable cause for the defendant’s arrest and subsequent testing. Maurer v. State, 240 Ga. App. 145, 525 S.E.2d 104 (1999). Defendant’s conviction for driving under the influence to the extent that the defendant’s blood-alcohol content exceeded the legal limit was reversed as the trial court erroneously admitted a photostatic copy of the Intoxilyzer report over a best evidence objection, the state was unable to explain the absence of the original, the state presented no evidence that the state made any effort to locate the original, and former O.C.G.A. § 24-7-20 (see now O.C.G.A. § 24-9-920) did not apply. Lumley v. State, 280 Ga. App. 82, 633 S.E.2d 413 (2006). Trial court did not err in denying suppression of the results of the defendant’s Intoxilyzer 5000 and other field sobriety tests administered upon a defendant’s arrest for driving with an unlawful alcohol concentration and driving under the influence of alcohol in violation of O.C.G.A. § 40-6-391 as: (1) the arguments the defendant raised about the officer’s ability to 40-6-391 manipulate the Intoxilyzer 5000 test went to the weight, and not admissibility of the evidence; (2) the officer was sufficiently trained to administer the tests; (3) the state showed substantial compliance with the required procedures; and (4) no due process violation resulted from the evidence being admitted. Stewart v. State, 280 Ga. App. 366, 634 S.E.2d 141 (2006). Evidence was sufficient for the trial court to find beyond a reasonable doubt that the defendant was guilty of driving an automobile with an unlawful alcohol concentration in violation of O.C.G.A. § 40-6-391(a)(5) because to carry the state’s burden to show that the Intoxilyzer machine on which the defendant’s breath was tested was operated with all the machine’s electronic and operating components attached and in good working order, the state produced certificates of inspections conducted on the machine before and after the test, and the testimony of the operator that the machine was operating properly when the test was conducted; the machine produced test results showing that the defendant had an alcohol concentration of 0.179 grams. Yeary v. State, 302 Ga. App. 535, 690 S.E.2d 901 (2010). Only computer printout of intoxilyzer test is discoverable. — Trial court did not err in denying the defendant’s motion for disclosure of scientific reports pursuant to O.C.G.A. § 40-6-392(a)(4) because intoxilyzer test results were provided to the defendant, and the defendant’s discovery request was overbroad when the defendant sought information far beyond the scope of information to which the defendant was entitled under § 40-6-392(a)(4); the only discoverable information from an intoxilyzer test under § 40-6-392(a)(4) is the computer printout of the test result because unlike the gas chromatography test, which produces data that has to be interpreted by a chemist to determine blood alcohol level, an intoxilyzer does not produce raw data but rather prints out the actual test result showing the person’s blood alcohol level, which means that the machine computes the test result. Stetz v. State, 301 Ga. App. 458, 687 S.E.2d 839 (2009). Evidence of field sobriety test harmless. — Conviction under O.C.G.A. 305 Testing (Cont’d) § 40-6-391(a)(5) does not require the state to prove impaired driving ability. Thus, even if the results of the field sobriety tests should have been excluded, the trial court’s failure to exclude the results was harmless error when the breath test results, which were not challenged on appeal, provide sufficient proof of the per se violation. Partridge v. State, 266 Ga. App. 305, 596 S.E.2d 778 (2004). Defendant was not harmed by the trial court’s denial of a motion to exclude the results of the defendant’s horizontal gaze nystagmus (HGN) test from the trial for a charge of driving under the influence of alcohol to the extent the defendant was a less safe driver, O.C.G.A. § 40-6391(a)(1), because the record showed that the HGN test evidence did not contribute to the verdict. The trial court found that the administration of the field sobriety tests by the officer were incorrect, but noted that the court had given the results of those tests little or no weight. Cash v. State, 299 Ga. App. 303, 682 S.E.2d 607 (2009), cert. denied, No. S09C1984, 2010 Ga. LEXIS 50 (Ga. 2010). Correlation between horizontal gaze nystagmus test and blood alcohol content. — At a trial for a violation of O.C.G.A. § 40-6-391(a)(1), an officer’s testimony as to the likelihood of blood/alcohol concentration based on certain results on the horizontal gaze nystagmus test was relevant since field sobriety test results were relevant and there was nothing inflammatory or misleading about the evidence. Webb v. State, 277 Ga. App. 355, 626 S.E.2d 545 (2006). Breath test evidence irrelevant. — In defendant’s prosecution for driving while under the influence of alcohol to the extent that the defendant was a less safe driver, the defendant’s blood alcohol was irrelevant so admission of the results of a breath test, even if erroneous, was harmless error and the defendant’s conviction would not be reversed on the ground of admission of that evidence. Worthman v. State, 266 Ga. App. 208, 596 S.E.2d 643 (2004). Breath test admissible. — Trial court properly denied the defendant’s motion in 40-6-391 limine, admitting an Intoxilyzer 5000’s certificate of inspection as nontestimonial, as well as the defendant’s breath test results; even if error was presented, it was harmless since the defendant was acquitted of driving under the influence with an unlawful blood alcohol concentration. Moreover, the incident report was properly admitted under the rule of completeness as the trial court was authorized to find that it was necessary for the state to admit all relevant parts of the incident report in evidence to show that the omissions noted by the defendant were not so material as to have effected the accuracy of the report. Phillips v. State, 289 Ga. App. 281, 656 S.E.2d 905 (2008). Trial court did not abuse the court’s discretion by denying the defendant’s motion for mistrial after the jury accidentally heard the numerical result of an Alco-Sensor test because the trial court gave the jury a curative instruction, and the totality of the evidence was sufficient by itself to support the jury’s finding that the defendant was guilty beyond a reasonable doubt of driving under the influence, O.C.G.A. § 40-6-391(k)(1). Travis v. State, 314 Ga. App. 280, 724 S.E.2d 15 (2012). Court of appeals did not err in reversing an order granting the defendant’s motion to suppress evidence of the state’s breath test results because the procedures followed by the state comported with the fundamental fairness required by due process; the police officer delivered to the defendant the required implied consent notice in an accurate and timely manner, thereby informing the defendant of the right to an independent test under O.C.G.A. § 40-6-392(a)(3). Thus, the state was under no constitutional duty to immediately inform the defendant of the results of the state administered breath test. Padidham v. State, 291 Ga. 99, 728 S.E.2d 175 (2012). Breath test admissible despite delay. — Breath test results were admissible at a trial for a violation of O.C.G.A. § 40-6-391(a)(1) and (5) as the police officer’s notification to the defendant of the implied consent rights under O.C.G.A. § 40-6-392(a)(4) was timely in the circumstances; although the defendant was placed in the police car and not given the 306 notification for 18 minutes, the notice was timely because the officer was attending to the passenger and ensuring that the passenger was unharmed and had a safe way to get home and the officer was transporting possession of the vehicle for purposes of impounding the vehicle. Naik v. State, 277 Ga. App. 418, 626 S.E.2d 608 (2006). Breath test admissible despite initial refusal. — Trial court was not required to suppress evidence of the defendant’s breath test results, although it was clear that the defendant refused to take a breath test when asked at the scene, as the defendant rescinded that refusal by agreeing to take the test at the police station. Stapleton v. State, 279 Ga. App. 296, 630 S.E.2d 769 (2006). At the time of a defendant’s arrest for DUI, the defendant refused to submit to a breath test; after the officer gave the defendant the chance to rescind this refusal, the defendant agreed to take the test in the absence of any threats or inducements. As the officer did not act unreasonably in attempting to induce the defendant to rescind the initial refusal, the test results were admissible. State v. Quezada, 295 Ga. App. 522, 672 S.E.2d 497 (2009). Refusal not evidence of the presence of alcohol. — Jury charge that a DUI defendant’s refusal to submit to a blood alcohol test could create an inference that the test would show the presence of alcohol which impaired the defendant’s driving was plain error, requiring a new trial, because the charge shifted the burden of proof to the defendant, requiring the defendant to rebut the inference that the defendant was an impaired driver. Wagner v. State, 311 Ga. App. 589, 716 S.E.2d 633 (2011). Use of terms ‘‘percent’’ or ‘‘grams.’’ — Although the intoximeter test results in this case were expressed in numbers which represent the percentage of alcohol in the blood by weight, or grams, those results frequently have been referred to without qualifying the results with either the term ‘‘percent’’ or the term ‘‘grams,’’ and are commonly understood to mean the amount of alcohol in a certain weight of the subject’s blood, expressed as a percentage. Page v. State, 202 Ga. App. 828, 40-6-391 415 S.E.2d 487, cert. denied, 202 Ga. App. 907, 415 S.E.2d 487 (1992). Denial of pretrial intoximeter inspection motion harmless. — Acquittal under paragraph (a)(4) (now (a)(5)) of O.C.G.A. § 40-6-391 precluded any harm in denying the defendant’s motion for pretrial inspection of an intoximeter device and was no basis for reversal of convictions under paragraph (a)(1) of O.C.G.A. §§ 40-6-391 and 3-3-23(a)(2). Gilbert v. State, 262 Ga. 840, 426 S.E.2d 155 (1993). Uncertified photocopies of a certificate of inspection for an Intoxilyzer 5000 were admissible after a police officer testified at trial that the officer personally made the photocopies of the original certificates. Wright v. State, 238 Ga. App. 442, 519 S.E.2d 461 (1999). Results of defendant’s intoximeter test were admissible because the arresting officer advised the defendant of the defendant’s rights under the implied consent law as close in proximity to the instant of arrest as the circumstances warranted, since after the officer stopped the defendant and put the defendant in the patrol car, the officer got a call and went after another vehicle, picked up the driver and then took both of the drivers to the police station and read the defendant the implied consent rights while the drivers were in the patrol car. Fore v. State, 180 Ga. App. 196, 348 S.E.2d 579 (1986). Blood test results were admissible for driving offenses. — In a prosecution for driving under the influence of marijuana and driving under the influence of drugs to the extent of being a less safe driver, even though the hospital consent form signed by the defendant was entitled ‘‘Request for Alcohol Testing,’’ the test results, which were positive for marijuana, were admissible since the defendant had earlier consented to testing after receiving the required implied consent notice. State v. Lewis, 233 Ga. App. 390, 504 S.E.2d 242 (1998). Trial court did not err in denying a motion to suppress evidence of the blood-alcohol results obtained after the defendant’s vehicle was stopped and it was determined that the defendant was driving under the influence; the defendant consented to such a test as a driver using 307 Testing (Cont’d) a vehicle on the Georgia highways and the delay in administering the implied consent warning was due to the defendant’s drunken condition and difficult behavior. Cain v. State, 274 Ga. App. 533, 617 S.E.2d 567 (2005). Although the state was unable to prove that the defendant’s blood-alcohol content exceeded the legal limit within three hours of driving, as required by O.C.G.A. § 40-6-391(a)(5), the jury was authorized to consider the blood test results in connection with the charge that the defendant was a less safe driver. Furlow v. State, 276 Ga. App. 332, 623 S.E.2d 186 (2005). Defendant’s argument, that the officer advised the defendant that the defendant was under arrest for driving under the influence and not for a violation of O.C.G.A. § 40-6-391(a)(6) and that the defendant never consented to the testing of the defendant’s blood for the presence of drugs, failed; nothing in O.C.G.A. § 40-5-55 or O.C.G.A. § 40-6-392 required the officer to tell the defendant that the defendant was under arrest for a drug offense in order for the implied consent to be valid. Meiklejohn v. State, 281 Ga. App. 712, 637 S.E.2d 117 (2006). Refusal to submit to breath test as search incident to arrest, after warning, was admissible. — In the defendant’s DUI trial, O.C.G.A. § 40-6-391(a)(1), because a breath test was permitted as a search incident to the defendant’s DUI arrest, the defendant’s refusal to take the breath test was not the exercise of the constitutional right against unreasonable searches and seizures, and evidence of the defendant’s refusal was properly admitted under O.C.G.A. § 40-5-67.1(b). Cherry v. State, No. A17A2085, 2018 Ga. App. LEXIS 116 (Feb. 21, 2018). Results of chemical tests administered to defendant were inadmissible since the crime laboratory report on the tests did not state on the report’s face the exact numerical quantity of the drugs found in the defendant’s blood and urine. Box v. State, 187 Ga. App. 260, 370 S.E.2d 28 (1988). 40-6-391 Trial court erred in denying the defendant’s motion to suppress the results of a blood test the defendant consented to after a state trooper read defendant the implied consent notice under O.C.G.A. § 40-5-67.1(b)(2), which informed the defendant that Georgia law required the defendant to submit to chemical testing, that the refusal to submit to testing would lead to the suspension of the defendant’s driving privileges, and that the defendant’s refusal might be offered into evidence against the defendant at trial; the defendant was not suspected of violating O.C.G.A. § 40-6-391 when the defendant was advised of the implied consent law, O.C.G.A. § 40-5-55(a) (which was unconstitutional), and the defendant’s consent was invalid. Cooper v. State, 277 Ga. 282, 587 S.E.2d 605 (2003). Suppression of chemical breath test results were required because after the defendant failed to respond to the officer’s request to administer the chemical breath test and because such a response was tantamount to a refusal, when the defendant was then taken to a detention center, it was error to administer the test without the defendant being asked to consent again or without reading the defendant’s implied consent warnings pursuant to O.C.G.A. § 40-5-67.1. State v. Adams, 270 Ga. App. 878, 609 S.E.2d 378 (2004). Trial court erred in denying a motion to suppress the defendant’s chemical test results that were obtained under the implied consent statute, O.C.G.A. § 40-5-55(a), as the defendant was not arrested after a fatal crash for any offense in violation of O.C.G.A. § 40-6-391 nor was there probable cause to arrest the defendant for any such violation. Costley v. State, 271 Ga. App. 692, 610 S.E.2d 647 (2005). State-administered test results improperly admitted. — Defendant’s conviction for underage driving under the influence (blood alcohol content) was reversed as the trial court improperly denied the defendant’s motion in limine premised on the arresting officer’s failure to provide the defendant with an independent chemical test of the defendant’s blood after defendant plainly requested one; that the defendant’s request for a blood 308 test was made prior to the defendant’s arrest and the giving of the implied consent warnings was not determinative under these facts and the officer’s failure to inquire into the defendant’s request for an independent test required the suppression of the results of the state-administered test. McGinn v. State, 268 Ga. App. 450, 602 S.E.2d 209 (2004). Trial court did not err in denying defendant’s motion to exclude state-administered test results. — Trial court did not err in denying the defendant’s motion to exclude the results of a state-administered breath test because a state trooper’s initial overstatement of the legal blood alcohol concentration, which the trooper corrected immediately, was so not misleading that it rendered the defendant incapable of making an informed decision about whether to submit to chemical testing; the videotape recording demonstrated that before the trooper read the implied consent notice, the defendant told the trooper that the defendant knew that 0.08 grams was the legal limit applicable to individuals over the age of 21. Travis v. State, 314 Ga. App. 280, 724 S.E.2d 15 (2012). Trial court properly denied the defendant’s motion in limine to exclude evidence that the defendant refused chemical testing based on the testimony of a deputy that while in the defendant’s hospital room, a ticket was written for drunk driving and the defendant was advised of the custodial arrest; thus, there was no error in the trial court’s determination that a reasonable person in the defendant’s position would not think that they were free to leave at the time the deputy read the implied consent warnings. Plemmons v. State, 326 Ga. App. 765, 755 S.E.2d 205 (2014). Failure to allow independent urine test. — Judgment of conviction entered against the defendant for driving under the influence of alcohol to the extent it was less safe to drive had to be reversed as the trial court erred in admitting the results of a breath test since the defendant also requested that an independent urine test be performed as was the defendant’s right under the law, and since that right was not honored, the law dictated 40-6-391 that the breath test was not admissible to support the defendant’s conviction. Johnson v. State, 261 Ga. App. 633, 583 S.E.2d 489 (2003). Trial court erred in not suppressing the results of the state-administered breath test that the defendant gave after the defendant was arrested for driving under the influence of alcohol; the defendant exercised the defendant’s right to also request that an additional test be performed by asking that the defendant be given an independent urine test, and since that right was not honored, the state-administered breath test was not admissible to support the defendant’s conviction. Johnson v. State, 261 Ga. App. 633, 583 S.E.2d 489 (2003). Admissibility of results of test performed pursuant to medical treatment. — When the blood-alcohol test was performed pursuant to the medical treatment of the plaintiff and recorded in the regular course of hospital business, and the blood-alcohol test was not administered for the purpose of determining whether the plaintiff violated O.C.G.A. § 40-6-391, it was not necessary that the defendant establish compliance with that statute to render the test results admissible; the blood test results thus recorded in the regular course of hospital business were admissible under former O.C.G.A. § 24-3-14 (see now O.C.G.A. § 24-8-803). Bynum v. Standard (Chevron) Oil Co., 157 Ga. App. 819, 278 S.E.2d 669 (1981). Trial court did not err in denying the defendant’s motion for an independent expert to examine the intoximeter that was used to test the defendant’s breath because any testing by such an expert would not prove that the machine gave an inaccurate reading for the defendant since the original test condition, including the defendant’s own physical condition, could not have been duplicated. Blanos v. State, 192 Ga. App. 835, 386 S.E.2d 714 (1989). Trial court did not err in admitting the results of a blood test administered to the defendant in the course of medical treatment as the right to refuse a state-administered test was entirely independent of the state’s prerogative, pursuant to a warrant obtained in accordance with the Fourth Amendment, to obtain 309 Testing (Cont’d) test results as other evidence of a crime. Rylee v. State, 288 Ga. App. 784, 655 S.E.2d 239 (2007). Admissibility of blood test. — State showed to a reasonable certainty that the blood tested at a lab was the same as that drawn from the defendant, notwithstanding a discrepancy between the testimony of the person who drew the blood and the person who tested the blood as to the color of the stopper on a sealed vial. Brown v. State, 201 Ga. App. 441, 411 S.E.2d 286 (1991). Because the police had probable cause to believe that the defendant was impaired, in violation of O.C.G.A. § 40-6-391, when the defendant caused a vehicle accident that resulted in serious injury of one vehicle occupant and the death of another occupant, based on the defendant’s appearance and statements made to medical personnel, the trial court found that the implied consent notice was properly administered and suppression of the state-administered chemical tests was denied; although the defendant was not under arrest at the time the implied consent notice was read to the defendant, given the serious injuries resulting from the accident and the fact that there was probable cause to believe the defendant was driving while impaired, the consent to testing was implied pursuant to O.C.G.A. § 40-5-55. Ellis v.