The Court of appeals held that the odor of alcohol, refusal to take the state-administered tests, and his obstruction were sufficient evidence to support the jury’s guilty verdict as to DUI being less safe. With no less safe driving, no admission of drinking, no slurred speech, no red eyes, and no unsteadiness, does the finding of sufficient evidence of DUI hinge upon the failure to cooperate with police? It is well settled that mere presence of alcohol is not enough to convict someone of DUI and that a refusal to submit to a state-administered test of your breath standing alone is merely evidence of the presence of alcohol and may only be considered evidence of less safe driving. See, State v. Ellison, 271 Ga. App. 898, 611 S.E.2d 129 (2005)(Holding that the mere presence of alcohol is not enough to convict of DUI less safe); Baird v. State, 260 Ga. App. 661, 580 S.E.2d 650 (2003)(hold that Georgia law does not permit an inference of impairment from a refusal to take a breath test). This leads to the conclusion that the only evidence of less safe DUI is the obstruction. As alcohol is a central nervous system depressant, it should reduce nervousness, heart rate, and shaking which would all indicate a lack of alcohol impairment. This case would seem Taylor made for reversal of itself.
-Author: George Creal