TRAVIS v. STATE, A11A1941, Meriwether Superior Court, Appealed from Meriwether County State Court. In 2009, the then 20-year-old Appellant, Kaitlin Travis, was stopped for speeding 32 m.p.h over the posted speed limit late at night on a portion of a highway designated as a construction zone. The officer smelled alcohol emanating from her car. When asked if she had been drinking, Travis initially denied having had any alcohol, but later admitted to having consumed alcohol earlier in the day. Travis blew into a hand-held Alco-Sensor device which produced a reading of .04 BAC. She also performed an HGN test, which, according to the guidelines of the evaluation, also confirmed the presence of alcohol. She then consented to a state-administered breath test which gave a sequential reading of .036 and .037 BAC.
Travis was tried for speeding, reckless driving, DUI “less safe” and an under 21 DUI, and convicted of speeding, under 21 DUI, and reckless driving. She appealed her sentence on a total of seven accounts, the fifth, and most notable, is that the trial court erred by failing to give the jury her requested instruction on the statutory assumption of sobriety as outlined in OCGA § 40-6-392 (b) (1): for counts of DUI “less safe” defendants with a BAC of .05 or less may be presumed sober. Regarding her DUI “less safe” charge, Travis, since she had a BAC of less than .05, requested to be tried with the presumption of sobriety as outlined in OCGA § 40-6-392 (b) (1). In light of Travis’s underage charge and the fact that the jury could be confused by the presumption outlined in OCGA § 40-6-392 (b) (1), the court denied Travis’s request. What is of especial note here is that there is no statutory presumption of sobriety for under 21 DUIs, the legal limit of which is .02 BAC. Travis, at 20 years of age with a .036 BAC is, by law, incapable to drive. At 21 years of age, with the same BAC, she is, by law, presumed sober.