Mendoza v. State , 196 Ga. App. 627 ( 1990 )

Pope, Judge.

Defendant appeals his conviction of driving under the combined influence of alcohol and drugs, OCGA § 40-6-391 (a) (3). Defendant was charged with three counts of DUI. Count 1 charged DUI/alcohol pursuant to OCGA § 40-6-391 (a) (1). Count 2 charged DUI/drugs pursuant to OCGA § 40-6-391 (a) (2). Count 3 charged DUI/combined alcohol and drugs. Defendant was acquitted of Count 2, driving under the influence of drugs, OCGA § 40-6-391 (a) (2). The court directed a verdict of “not guilty” as to Count 1, driving under the influence of alcohol, OCGA § 40-6-391 (a) (1), which the jury returned. Although the dissent finds the result incongruous, the record positively reflects evidence to support the conviction as set out in Division 1. Had the trial court chosen to do so, it could have submitted Count 1, the DUI/ alcohol (alone) charge to the jury. However, the fact that it did not, does not affect the validity of the conviction. See Vann v. State, 153 Ga. App. 710 (2) (266 SE2d 349) (1980).

1. Defendant argues that the trial court should not have permitted a State’s witness, a police officer, to testify that defendant was under the influence of drugs because there was an insufficient foundation laid for the officer’s opinion. Specifically, defendant objected to allowing the officer to testify about his use of two field sobriety tests, the “horizontal gaze nystagmus” (HGN) test and the “hippus” test. In the HGN test the officer has the suspect follow an object with his eyes. A jerking movement indicates drug use. In the hippus test, the officer shines a light in the suspect’s eyes and observes the contraction or fixation of the pupils to indicate drug use. Because the officer could not give the scientific basis for each of these tests, including evidence of the scientific validity and reliability of the tests, defendant argues that evidence of these tests should have been excluded and the officer should not have been allowed to give his opinion that defendant was under the influence of drugs. However, upon the record before us, we need not reach the issue of the scientific validity of these tests.

The record shows that Mendoza was acquitted of Count 2, driving under the influence of drugs, but was convicted of Count 3, driving under the influence of alcohol and drugs. Even excluding evidence of the tests, there was sufficient other evidence to support a conviction for driving under the influence of alcohol. See Division 2, infra. The arresting officer testified that he observed Mendoza driving on the wrong side of the road. When he stopped Mendoza and questioned him outside his car, Mendoza was unsteady on his feet, showed glassy and bloodshot eyes and tested positive for alcohol on the alcosensor; Mendoza also refused to submit to a chemical test of his blood. This is sufficient to support Mendoza’s conviction. That the evidence showed use only of alcohol and not of drugs does not create a fatal variance between the accusation and the proof. Vann v. State, supra.

In addition, the record shows that the trial court twice sustained Mendoza’s objections to evidence of the officer’s interpretation of the two tests question. The trial court did allow the officer to state that it was his opinion, based upon the totality of the circumstances, that Mendoza was under the influence of drugs. Thus, upon this record, there is no issue for review regarding the tests because the court sustained objections to them. There is no reversible error in the trial court’s decision to allow the officer’s opinions regarding drug use because the jury acquitted Mendoza of the count based solely on drug use.

2. Defendant argues that he was entitled to a directed verdict of acquittal because the scientific reliability of the field tests performed by the officer was not established, so there was no basis for the arresting officer’s opinion that defendant was under the influence of drugs. Because no forensic evidence of defendant’s use of either alcohol or drugs existed (due to defendant’s refusal to submit to either blood or urine tests for determining alcohol or drug use), defendant argues that there is no competent evidence to show drug use beyond a reasonable doubt.

The court in Brooks v. State, 187 Ga. App. 194, 195 (1) (369 SE2d 801) (1988), held: “This refusal [to submit to a test] itself may be considered as positive evidence creating an inference that the test would show the presence of the prohibited substance. OCGA § 40-6-392 (c); Wessels v. State, 169 Ga. App. 246 (312 SE2d 361) (1983).” In addition, the officer’s conclusion that defendant was under the influence of drugs was based upon more than the two specific tests to which defendant objected.

Construed in favor of the verdict, the evidence was such that a rational trier of fact could have found proof of defendant’s guilt beyond a reasonable doubt. Merrell v. State, 192 Ga. App. 100, 101 (1) (383 SE2d 905) (1989).

3. Defendant assigns error in the exclusion of the specific quantitative result of his alco-sensor test, which was .03 grams percent of alcohol. The officer did testify that the test showed “positive for alcohol.”

This court has recognized that an alco-sensor test is not evidence of the amount of alcohol in a person’s blood, but is rather a screening device to determine whether there is probable cause that a defendant is driving under the influence of alcohol. Sturdy v. State, 192 Ga. App. 71, 72 (383 SE2d 632) (1989); Whiteley v. State, 188 Ga. App. 129 (1) (372 SE2d 296) (1988); Turrentine v. State, 176 Ga. App. 145, 146 (1) (335 SE2d 630) (1985). Although Ronskowsky v. State, 190 Ga. App. 147, 148 (2) (378 SE2d 185) (1989), affirmed the admission of the results of an alco-sensor test where the State introduced a document certifying the device had been approved by the GBI’s Division of Forensic Sciences, this does not mean its measurement of the amount of alcohol percentage was permitted. Ronskowsky was based on Turrentine, supra, which distinguished between the alco-sensor results, which are used to alert the officer to the presence of alcohol, and the intoximeter test, which is used to gauge the amount of alcohol. The officer in this case was permitted to testify that the test showed the presence of alcohol. The exclusion of the quantitative result of the alco-sensor test was not reversible error.

Judgment affirmed.

McMurray, P. J., Banke, P. J., Birdsong and Cooper, JJ., concur. Deen, P. J., concurs specially. Carley, C. J., Sognier and Beasley, JJ., dissent.