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Court of Appeals of Georgia.


No. A98A0317.

Decided: January 28, 1998

Deborah N. Bedsole, Athens, for appellant. Kenneth W. Mauldin, Solicitor, Donna M. Dunn, Assistant Solicitor, for appellee.

John David Walker was convicted of driving under the influence (less safe to drive) (“DUI”), driving without insurance, and an equipment violation.   In his sole enumeration, he challenges the sufficiency of the evidence on the DUI count.

As the arresting officer patrolled a commercial district in his marked car, Walker passed him on the right, travelling approximately 60 mph.   When the officer followed, Walker weaved, changed lanes and crossed the center line in an attempt to pass three vehicles.   At that point, the officer activated his lights and Walker stopped.   When questioned, Walker admitted he had no license or insurance.   After the officer noticed the smell of an alcoholic beverage in the car, Walker also admitted he had consumed several beers.   Appearing agitated, Walker refused to perform any field sobriety tests, but agreed to take an alco-sensor test, which registered positive for alcohol.   The officer then arrested Walker and took him to the jail for a breath test, in which he gave an inadequate breath sample.   Held:

 The evidence, viewed in the light most favorable to the verdict, was sufficient to permit the jury to find all the essential elements required to establish a violation of OCGA § 40-6-391(a)(1).  Jackson v. Virginia, 443 U.S. 307, 319-320, 99 S.Ct. 2781, 2789-2790, 61 L.Ed.2d 560 (1979).   That statute prohibits driving while “under the influence of alcohol to the extent that it is less safe for the person to drive.”  OCGA § 40-6-391(a)(1).   Evidence of an unsafe act is not required to establish this offense, which may be proved by circumstantial evidence.  Apperson v. State, 225 Ga.App. 804, 805(2), 484 S.E.2d 739 (1997).

The arresting officer testified that Walker was speeding, weaved while changing lanes, crossing the center line, smelled like he had been consuming alcohol and, in fact, admitted such.  Knox v. State, 216 Ga.App. 90, 92, 453 S.E.2d 120 (1995);  Grant v. State, 215 Ga.App. 10, 12, 449 S.E.2d 545 (1994).   This evidence is bolstered by the fact that Walker, after performing ineffectively on his initial breath test and refusing to take another, stated he “just wanted to lay [sic] down.”   Further, the arresting officer offered his opinion based on his experience in handling DUI cases during his nine-year police career that Walker was under the influence to the point he was less safe to drive.   This evidence was sufficient to satisfy the requisites of Jackson v. Virginia, supra.

Judgment affirmed.

HAROLD R. BANKE, Senior Appellate Judge.

McMURRAY, P.J., and BLACKBURN, J., concur.

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