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Lavertu v. State

Court of Appeals of Georgia

February 7, 2014

LAVERTU
v.
THE STATE

Page 664

DUI. Douglas State Court. Before Judge Dettmering.

Edward V. C. Silverbach , Katherine L. Dodd, for appellant.

Matthew C. Krull , Solicitor-General, David Holmes , Assistant Solicitor-General, for appellee.

BARNES, Presiding Judge. Miller and Ray, JJ., concur.

OPINION

Page 665

Barnes, Presiding Judge.

A jury convicted Jacqueline Lavertu of driving with a blood alcohol count over 0.08 (" DUI per se" ), of driving under the influence of alcohol to the extent that it was less safe for her to drive (" DUI less safe" ), and driving with an open alcoholic container. She argues on appeal that the trial court abused its discretion in denying her motion for a new trial on her conviction of DUI less safe because the verdict was strongly against the weight of the evidence, and that she was entitled to a new trial because her trial counsel's performance was deficient in failing to question witnesses about the handling of her blood sample and failing to object that the State's closing argument was prejudicial. For the reasons that follow, we affirm.

" On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence." Green v. State, 323 Ga.App. 832 (748 S.E.2d 479) (2013). So viewed, the evidence shows that a trooper with the Georgia State Patrol observed Lavertu cross the yellow centerline several times and stopped her to investigate whether she was impaired. Her pupils were slightly constricted and bloodshot, and her speech was slightly slurred. She initially got out of the car with no shoes on but returned to the car and put them on when the trooper asked if she wanted to do so. Her hand gestures were " sporadic" and nervous. The trooper attempted to conduct field sobriety tests, but Lavertu said an injury prevented her from performing the one-leg stand or walk and turn tests. She performed several counting and dexterity tests, and when asked to count backward from 75 by ones she " butchered it" several times, counting off seemingly random numbers that were not sequential. When asked to perform a finger dexterity test counting from one to four and four to one while touching her thumb to her fingers, Lavertu was unable to count backward. With her head back and eyes closed, Lavertu was unable to touch her nose. While attempting to perform the horizontal [325 Ga.App. 710] gaze nystagmus test, the trooper observed a nystagmus at maximum deviation, but Lavertu would not follow his directions to continue focusing on his finger, and so the nystagmus was not sustained sufficiently for him to document its existence. She declined to take a portable breath test to confirm or deny the presence of alcohol in her system. She was very nervous and " antsy," moving in and out of the camera frame as equipment in the trooper's car recorded the stop.

A second trooper who was qualified as an expert in alcohol and drug recognition testified that the first trooper asked him to come to the scene and give his opinion about whether Lavertu was under the influence of drugs or alcohol. He also testified that Lavertu would not follow his stimulus on the horizontal gaze nystagmus test, which tested for involuntary jerking of the eyes, nor would she follow his directions for a balance test. When she closed her eyes and leaned her head back with her hands at her side, she estimated that 30 seconds had passed when actually 56 seconds had passed. The expert testified that an estimate of time off by five seconds either way is an indication of impairment. Finally, Lavertu had body tremors and her eyes showed a lack of convergence when tested. In the expert opinion of the second trooper, Lavertu was under the influence of a central nervous system depressant or cannabis, to the extent she was a less safe driver.

While the first trooper thought that Lavertu was not " falling over drunk," he also thought she was not sober and was a less safe driver than someone who was not under the influence of drugs or alcohol because her reaction time was suppressed. He arrested Lavertu for DUI and after placing her in the back of his patrol car, he and other officers searched the area of her car within reach of the driver's seat. Inside a pocketbook on the floor on the passenger side, the trooper found a shoe containing a small empty vodka bottle, of the size used on airplanes. A police cadet on scene found one or two more similar

Page 666

empty vodka bottles.[1] The trooper read the implied consent notice to Lavertu, and she agreed to give a blood sample, which was drawn at the police station.

A toxicologist with the Georgia Bureau of Investigation (" GBI" ) Division of Forensic Sciences testified that upon receipt of evidence, the " evidence receiving technician" creates a file in the GBI database with information such as the subject's name, the date of receipt, and the incident information. The evidence is assigned a unique identification number, and bar code stickers with that number are printed and applied to all the evidence and paperwork associated with the [325 Ga.App. 711] case. The technician then photographs the evidence and forwards it to the toxicologist. After testifying about the specific testing procedures used, the toxicologist testified that the sample labeled with Lavertu's name contained 0.159 grams of alcohol, plus or minus 0.006 grams, per 100 milliliters of blood, which exceeded the per se blood alcohol content of 0.08. The effect of that level of alcohol on a person would be decreased inhibitions, increased self-confidence and sociability, slower information processing, possible mental confusion, memory lapses, difficulty perceiving sights and ...


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