Justice Soles v. State ( 2021 )

SECOND DIVISION
MILLER, P. J.,
HODGES and PIPKIN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
June 24, 2021
In the Court of Appeals of Georgia
A21A0580. SOLES v. THE STATE.
PIPKIN, Judge.
After a bench trial, Justice Michelle Soles was found guilty of driving under
the combined influence of two or more substances to the extent that she was less safe
to drive (“DUI”), driving the wrong way on a one way street, failure to display license
plate, and failure to have license on person. In her single enumeration of error on
appeal, Soles challenges the sufficiency of the evidence to support her conviction for
DUI, arguing that the evidence was insufficient to support the DUI conviction. For
the reasons explained below, we affirm.
When viewed in a light most favorable to the verdict,1 the evidence presented
below established as follows. On May 18, 2019, at approximately 12:40 a.m., a
1
Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
trooper with the Georgia State Patrol observed Soles driving on Georgia Avenue
without a license plate. Soles signaled and made a left turn, but ended up traveling the
wrong direction on a clearly marked one way street. The trooper immediately initiated
a traffic stop and made contact with Soles. The trooper observed that Soles had
bloodshot, glassy eyes, the odor of an alcoholic beverage emanated from her breath,
and her speech was slow. Soles indicted that she recently consumed one beer. The
only field sobriety evaluation admitted at trial was the Horizontal Gaze Nystagmus
(HGN), during which the trooper observed two of six possible clues. After conducting
HGN, the trooper noticed that Soles had dilated pupils and marked reddening of the
conjunctiva, and he began to suspect that Soles was primarily under the influence of
a substance other than alcohol. The trooper questioned Soles about her drug use, and
she admitted smoking a “bowl” of marijuana with a friend about 45 minutes earlier.
When asked how high she felt on a scale of zero to ten, zero being not high at all and
ten being “the highest she’s ever been,” Soles replied “like a three,” and indicated that
she would not have felt comfortable driving her children in her condition, having
consumed marijuana and alcohol. The trooper testified that, based on his experience
and observations at the scene, he believed Soles to be under the influence of
marijuana and alcohol to the extent that she was a less safe driver.
2
The State presented testimony of two forensic toxicologists from the Georgia
Bureau of Investigation (“GBI”) Division of Forensic Sciences. Duriel McKinsey was
responsible for the analysis of Soles’ blood for the presence of alcohol, which was
shown to be 0.023 grams per 100 milliliters of blood. Dr. Thao Dang reviewed and
discussed the drug analysis which revealed 5.6 nanograms of delta-9-
tetrahydrocannabinol (“THC”), the psychoactive ingredient in marijuana, per 100
milliliter of blood. Neither toxicologist provided an opinion that incorporated the
results of the two blood tests. However, McKinsey testified generally concerning the
combined effects of alcohol and marijuana on the human body, explaining that
marijuana can operate as a central nervous system depressant and when combined
with alcohol there can be an additive effect. Dang similarly testified that, generally
speaking, combining alcohol with marijuana has an additive effect that would further
impair a driver. Finally, Soles tendered as evidence a July 2017 National Highway
Traffic Safety Administration (“NHTSA”) document entitled “Marijuana-Impaired
3
Driving – A Report to Congress” (“NHTSA Report”).2
Soles makes two main arguments on appeal. First she argues that the State
failed to present toxicological evidence that the specific combination of alcohol and
marijuana in her system rendered her less safe. She also argues that the witnesses’
“generalized opinions” are not sufficient in light of the inference contained in OCGA
§ 40-6-392 (b) (1). We will address each of these contentions in turn.
On appeal from a bench trial resulting in a criminal conviction, we view
all evidence in the light most favorable to the trial court’s verdict, and
the defendant no longer enjoys the presumption of innocence. We do not
re-weigh testimony, determine witness credibility, or address assertions
of conflicting evidence; our role is to determine whether the evidence
presented is sufficient for a rational trier of fact to find guilt beyond a
reasonable doubt.
(Citation omitted.) Wimberly v. State, 302 Ga. 321, 323 (1) (806 SE2d 599) (2017).
Soles was convicted of DUI less safe multiple substances under OCGA § 40-6-
2
Because the NHTSA Report was admitted as an exhibit, Soles urges us to
consider several portions of the report that discuss the combined effects of marijuana
and alcohol. The State in its brief contends admission of this entire report was
improper; however, the admissibility of this report is not properly before this Court.
See OCGA §§ 5-6-40 and 5-7-1. Without addressing the propriety of the admission
of the NHTSA Report as an exhibit we note that Soles’ reliance on this document is
somewhat misplaced, as it also contains conclusions that could be deemed to
contradict her arguments.
4
391 (a) (4). “The offense of driving while under the influence to the extent that it is
less safe to drive has three elements: (1) driving, (2) under the [combined] influence
of alcohol [and any drug], (3) to the extent that it is less safe for the person to drive.”
(Citation and punctuation omitted.) Jones v. State, 332 Ga. App. 449, 450 (1) (773
SE2d 408) (2015). This offense does not require the State to produce evidence of a
chemical analysis of a defendant’s bodily substances, much less evidence that the
specific concentration levels of the substances found in her system were impairing.
See OCGA § 40-6-391 (a) (4); see also Keef v. State, 220 Ga. App. 134, 137 (1) (b)
(469 SE2d 318) (1996) (recognizing that DUI less safe “does not require a certain
amount of controlled substance to be shown”).3 While the State was required to show
that Soles was rendered a less-safe driver as a result of the drugs and alcohol she
ingested, Jones, 332 Ga. App. at 450, the combined result of the chemical analyses
of Soles’ blood for alcohol and THC was just one factor that could be considered by
3
While Keef was decided under a prior version of Georgia’s DUI statute, the
language in the statute today remains substantially similar to the code section
applicable here. OCGA § 40-6-391 (a) (3) (1992) provided, “[a] person shall not drive
or be in actual physical control of any moving vehicle while . . . [u]nder the combined
influence of alcohol and any drug to the extent that it is less safe for the person to
drive.
5
the factfinder in determining whether she was a less safe driver. See Webb v. State,
277 Ga. App. 355, 358 (1) (626 SE2d 545) (2006).
Soles also urges this Court to find that the opinion testimony that she was less
safe lacks evidentiary support in light of her blood alcohol concentration and the
inference afforded by OCGA § 40-6-392 (b) (1),4 the video evidence, and the NHTSA
Report. This argument ignores the fact that this Court does not re-weigh evidence.
Under OCGA § 40-6-392 (b) (1), a trier of fact is authorized, but not required, to
presume that a defendant was not under the influence of alcohol if chemical analysis
shows alcohol concentration of 0.05 grams or less. The trooper had the opportunity
to observe Soles prior to her arrest, and he opined that she was less safe to drive.
4
OCGA § 40-6-392 (b) (1) provides, in relevant part,
upon the trial of any civil or criminal action or proceeding arising out
of acts alleged to have been committed by any person in violation of
Code Section 40-6-391, the amount of alcohol in the person’s blood at
the time alleged, as shown by chemical analysis of the person’s blood .
. . may give rise to inferences as follows:
If there was at that time an alcohol concentration of 0.05 grams or less,
the trier of fact in its discretion may infer therefrom that the person was
not under the influence of alcohol, as prohibited by paragraphs (1) and
(4) of subsection (a) of Code Section 40-6-391[.]
6
Jaffray v. State, 306 Ga. App. 469, 471 (1) (702 SE2d 742) (2010) (“A police officer
may give opinion testimony as to the state of sobriety of a DUI suspect and whether
he was under the influence to the extent it made him less safe to drive.”) (citation and
punctuation omitted). The trial court expressly noted that it considered the testimony
of the trooper as well as the video evidence. And while the NHTSA report includes
some equivocal statements on impaired driving based on marijuana ingestion,5 it is
clear from the trial court’s oral pronouncement and written verdict that it weighed this
evidence in deciding Soles’ guilt.6 “The fact that the [factfinder] resolved the conflicts
5
In addition to the excerpts identified by Soles in her brief, the NHTSA Report
also discussed studies and findings that are either consistent with the testimony
presented by the State’s witnesses or detrimental to her argument. For example, when
discussing a study on the effects of marijuana use on driving proficiency, the report
states: “One of the effects of marijuana use was to cause an increase in the variability
of [subject motorists] vehicle’s lane position (the ability to stay in the center of the
lane). Both alcohol and marijuana alone increased lane position variability and when
combined the effects were additive.” The report also notes that”[s]ome studies have
reported increased impairment on driving related skills when subjects are dosed on
both alcohol and marijuana.” See O’Connell v. State, 285 Ga. App. 835, 837 (1) (a)
(648 SE2d 147) (2007) (“[W]hen the trier of fact rejects an alternative hypothesis in
favor of the State’s evidence of guilt, this Court is not authorized to reweigh the
evidence, and we will not reverse unless the verdict of guilty is unsupportable as a
matter of law.”) (citation and punctuation omitted).
6
When explaining its decision, the trial court specifically referenced the
NHTSA Report, indicating that Soles would have had “about a 20 percent
impairment. So that’s consistent with my finding, plus that would be combined with
the alcohol and be a more significant impairment.”
7
in the evidence or the credibility of the witnesses adversely to [Soles] does not render
the evidence insufficient.” (Citation and punctuation omitted.) Bullard v. State, 307
Ga. 482, 485 (1) (837 SE2d 348) (2019).
Here, the evidence included the less safe act of driving the wrong way on a one
way street, which the trial court expressly found to be evidence of impairment;
physical manifestations of impairment including slow speech, red, glassy eyes,
marked reddening of the conjunctiva and dilated pupils; Soles’ admission that she
recently consumed a beer and smoked marijuana 45 minutes before the stop;
testimony from the trooper that he believed Soles to be less safe due to the combined
influence of marijuana and alcohol; the testimony of the GBI toxicologists as to
Soles’ blood test results and the possible effects of marijuana ingestion and the
additive effect of introducing alcohol. This evidence combined with Soles’ own
statements regarding her level of intoxication is sufficient to authorize a rational trier
of fact to find that she was less safe to drive due to the marijuana and alcohol she
consumed. See Riviera v. State, 309 Ga. App. 544, 545 (1) (710 SE2d 694) (2011)
(testimony that the drugs found in Riviera’s system would have an additive effect,
detrimental to driving in conjunction with evidence of poor driving and physical
manifestations was sufficient to support DUI drugs conviction). Compare Head v.
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State, 303 Ga. App 475, 476-477 (1) (693 SE2d 845) (2010) (evidence insufficient
to support DUI less safe when defendant was not the at-fault driver in a collision and
toxicology evidence merely showed the presence of alprazolam and a cocaine
metabolite in defendant’s blood).
Judgment affirmed. Miller, P. J., and Hodges, J., concur.
9