Sullivan v. State, A13A2037, March 21, 2014. Michael Sullivan was arrested for DUI less safe in Atlanta, Fulton County Georgia, after being observed by Trooper Osby, of the Georgia State Patrol Nighthawk unit, spinning out at an intersection going the opposite direction. Trooper Osby made a u-turn and pulled him over for doing 50 to 55 in a 35-40 mph zone. (Query: it is not the crime of laying drag to spin wheels unless the car moves from side to side in a zig-zag fashion while the wheels are spinning and how did the trooper estimate speed, i.e., visual, radar, or pacing while driving in the opposite direction, and why did he not know the speed limit? The stop should have been challenged.) Sullivan allegedly had an odor or alcohol, was slow to get out of his car but did not stumble or stagger, had slow and mumbled speech but not slurred, bloodshot and watery eyes. Sullivan then refused all field tests stating that he knew he was going to jail. Sullivan was then arrested for DUI less safe and refused a state breath test.
The State introduced two prior DUI arrests only one of which resulted in a DUI conviction in which Sullivan was driving the same car and refused all tests under the old “bent of mind” rule that was repealed on January 1st, 2013 as this case was tried before that date. The Court of Appeals held that all that is required to establish “bent of mind” for DUI is that the Defendant has the bent of mind to get behind the wheel of a vehicle when it is less safe for him to do so.
After a Fulton County jury found him guilty of DUI less safe, Sullivan filed a motion for new trial asserting that there was insufficient evidence that he was less safe DUI as mere presence of alcohol is not enough but the state must prove presence plus some evidence direct or circumstance that his ability to drive was rendered less safe by alcohol. Compare, Baird v. State, 260 Ga. App. 661, 580 S.E.2d 650 (2003)(holding Georgia law does not allow an inference of impairment from a refusal). The Court of Appeals found that gunning his car and speeding off, an odor of alcohol, red and glassy eyes, exiting his vehicle slowly, mumbled speech, and admission of a couple of beers, refusing field tests, stating he knew he was going to jail, and refusing an official state breath test was enougn evidence to sustain a Jury’s guilty verdict in a DUI less safe case.
-Author: George Creal