G. Cruselle was stopped for speeding on I-285 in DeKalb County by Officer John Fox of the DeKalb County Police Department’s Special Operations Division. Officer Fox noted that Cruselle was unsteady on his feet; clothes were in disarray; had a flushed face; had bloodshot, watery, and glassy eyes; a strong odor of alcohol; in a confused state; speech was mumbled, and; presented a Georgia ID card.  Cruella’s passenger said he was driving like a fool, asked him to slow down, and had a beer 30-45 minutes earlier during a game of beer pong.  Cruselle refused all field tests and the state-administered breath test.

Cruella’s attorney argued that there was insufficient evidence to convict.  Judge Panos of the DeKalb County State Court in Decatur ruled that there was enough evidence for the Decatur jury to find Cruselle guilty of DUI.  The Court of Appeals agreed to find that this was more than evidence of mere presence.  The Court of Appeals held that a jury charge that read refusal of field tests is circumstantial evidence of intoxication when taken together with other evidence of impairment which begs the question how can field tests be voluntary if the refusal can be used against you? Massa v. State, 287 Ga. App. 494 (2007)(where the court held that while the trial court should not have given the charge there was no harmful error)

The Court of Appeals held that a jury charge that a refusal “may” be used as circumstantial evidence of impairment when taken with other evidence of impairment is permissible as long as the word “shall” is not used.  Bravo v. State, 249 Ga. App. 433 (2001).

The Court of Appeals affirmed a charge which allows the jury to consider speeding as evidence of impairment as long as the charge uses “may” instead of “shall.”  Yglesias v. State, 288 Ga. App. 217 (2007)(hold that speed plus other factors like a lack of balance can be evidence of impairment).

Finally, the Court of Appeals held that with improper closing argument by the prosecutor stating that a refusal along with manifestations of impairment is evidence is improper it did not warrant a mistrial as the judge has broad discretion to grant or not grant a motion for a mistrial.  Varner v. State, 285 Ga. 300 (2009)(this reference does support this conclusion of law that refusal plus manifestations equal circumstantial evidence of less safe driving?) This despite OCGA 17-8-75  which provides: “Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, the court must interpose and prevent the same. On objection made, the court shall also rebuke the council and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the prosecuting attorney is the offender.”