Jones v. State, A13A1940, Court of Appeals of Georgia, March 28, 2014. In January 2013, a Cherokee County jury found Michael Jones guilty of DUI Per Se (Breath test DUI), DUI less safe (Impaired driving DUI), and speeding. Jones appealed arguing that the Court erred by admitting evidence of his prior DUI conviction under OCGA 24-4-404(b) as the evidence was simply bad character evidence and not relevant or probative as to any proper material issue in the case and because evidence of the prior DUI was more prejudicial than it was probative under OCGA 24-4-403. In the current case, Jones was stopped for speeding. An odor of alcohol was detected. Field sobriety evaluations were performed. The Officer arrested Jones for DUI less safe and read implied consent. Jones blew a .147 and .139. The State moved to introduce evidence of a 2005 DUI conviction for purposes of proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident under the new evidence code which eliminated bent of mind and course of conduct reasons as a basis for similar transactions. After a hearing at the Cherokee Courthouse in Canton, Georgia, the Trial Court Judge, Frank C. Mills III, allowed the 2005 DUI conviction in evidence for knowledge and intent that is the intent to drive less safe, specifically knowledge of what alcohol did to him the first time.
In the 2005 DUI, Jones had been pulled over for weaving and following too close. He had an odor of alcohol, performed field tests, and blew a .195 and a .199.
A three-part test is used to determine the admissibility of prior bad acts under OCGA 24-4-404(b): (1) the prior act must be relevant to an issue other than the Defendant’s character; (2) there must be sufficient proof to enable a jury to find by a preponderance of the evidence that the defendant committed the prior bad acts; and (3) the probative value of the evidence cannot be substantially outweighed by undue prejudice in conformance with OCGA 24-4-403.
The Court of Appeals reviewed the Trial Court’s decision under a clear abuse of discretion and found that DUI is a strict liability offense and Intent to drive less safe is not relevant to a DUI but simply the intent to drive is the issue as no culpable mental state is required to commit a DUI in Georgia. For the same reasons, the Trial Court’s finding of knowledge of driving less safe in the prior case provided no relevant evidence in a Georgia DUI as the knowledge that you are DUI is not an element of the offense. The federal cases cited by the State were not applicable as they involved cases of manslaughter and second-degree murder where malice or callous indifference to the consequences were required elements to be proved by the State to obtain a conviction.
Consequently, the Georgia Court of Appeals reversed both the DUI less safe and the DUI per se convictions as allowing the prior DUI in evidence was a clear abuse of discretion by the Trial Court.
-Author: George Creal