Tutt v. State

197 S.E.2d 432, 128 Ga. App. 636, 1973 Ga. App. LEXIS 1563

Opinions

Stolz, Judge.

The defendant was tried and convicted on an indictment charging him with operating a motor vehicle while under the influence of intoxicants. A motion for new trial, on the general grounds only, was filed, heard, and overruled. The defendant appeals from the judgment and sentence and the overruling of the motion for new trial. Held:

While the evidence did not demand finding the defendant guilty of driving under the influence, it was sufficient to authorize his conviction.

The testimony of the state’s witness, Georgia State Patrolman Jerry Walker, showed that the defendant admitted to the officer that he was driving an automobile involved in an accident; that the officer observed the defendant at the scene of the accident; that in the officer’s opinion the defendant was under the influence of intoxicating liquors when observed by the officer at the scene of the accident; that the officer was notified of the accident at 9:43 p.m. and arrived at the scene at 9:50 p.m.; and that, in the officer’s opinion, the accident occurred at 9:30 p.m. The officer further testified that he gave the defendant a breath test to determine the alcohol content of the defendant’s blood at 10:45 p.m., which showed an alcohol content in the defendant’s blood in excess of .10% and that, in the officer’s opinion, the defendant’s blood alcohol content was approximately .15% at the time of the wreck. The officer testified that the defendant did not drink anything after the officer’s arrival at the scene of the accident and that the alcohol content in blood drops at a rate of 2 points per hour. The case falls squarely within the principles enunciated by this court in Stephens v. State, 127 Ga. App. 416 (193 SE2d 870).

The trial judge did not err in entering a judgment on the verdict.

Submitted November 6, 1972 Decided March 15, 1973 Rehearing denied March 30, 1973 Lawson E. Thompson, for appellant. Kenneth E. Goolsby, District Attorney, for appellee.

Judgment affirmed.

Bell, C. J., Hall, P. J., Pannell, Quillian and Clark, JJ., concur. Eberhardt, P. J., and Deen, J., concur specially. Evans J., dissents.