Cert. applied for.
Effective assistance of counsel. Gwinnett State Court. Before Judge Doran.
Head, Thomas, Webb & Willis, Gregory A. Willis, Jared T. Hall, for appellant.
Rosanna M. Szabo, Solicitor-General, R. Tyler Fisher, Assistant Solicitor-General, for appellee.
ANDREWS, Presiding Judge. Barnes, P. J., Doyle, P. J., Boggs, Ray and Branch, JJ., concur. McFadden, J., dissents.
Andrews, Presiding Judge.
Following a jury trial, Matthew Denstaedt was convicted of driving under the influence of alcohol with an alcohol concentration of 0.08 grams or more (OCGA § 40-6-391 (a) (5)) and acquitted of speeding (OCGA § 40-6-181) and driving under the influence of alcohol to the extent that it was less safe to drive (OCGA § 40-6-391 (a) (1)). Denstaedt appeals from the denial of his motion for a new trial, arguing that he received ineffective assistance from his trial counsel [329 Ga.App. 234] because she failed to admit into evidence at trial print cards generated during a quarterly inspection of the Intoxilyzer 5000 used to test his alcohol concentration. Denstaedt cannot establish prejudice resulting from his trial counsel's alleged deficient performance, and we therefore affirm.
Viewed in the light most favorable to the jury's verdict, Maloney v. State, 317 Ga.App. 460 (731 S.E.2d 133) (2012), the evidence at trial showed that at approximately 2:24 a.m. on February 6, 2011, a City of Duluth police officer conducted a traffic stop after the officer saw Denstaedt driving a car at a high rate of speed as Denstaedt turned onto Georgia Highway 120 from Peachtree Industrial Boulevard. The officer approached the vehicle, and as he advised Denstaedt of the reason for the stop, the officer noticed that Denstaedt was fumbling with his wallet. The officer immediately noticed an overwhelming odor of alcoholic beverage coming from the vehicle. When the officer asked Denstaedt about his consumption of alcohol, Denstaedt admitted to consuming three beers. The officer also observed that Denstaedt's speech was slurred and that his eyes were red and watery.
Denstaedt agreed to submit to standardized field sobriety evaluations, exited his car, and walked to the rear of the vehicle. The officer performed the horizontal gaze nystagmus (HGN), the walk and turn, and one-leg stand evaluations. The officer observed six out of six clues on the HGN evaluation, one of eight clues on the walk and turn, and
no clues on the one-leg stand. The officer testified that, based on his experience, six out of six clues on the HGN evaluation means that an individual is a less safe driver due to alcohol and over the per se legal limit.
The officer asked Denstaedt to submit to an alco-sensor evaluation, and Denstaedt's breath sample tested positive for the presence of alcohol. The officer then placed Denstaedt under arrest for driving under the influence and read Denstaedt Georgia's implied consent warning for suspects over the age of 21. Denstaedt agreed to submit to a breath test, and the officer transported Denstaedt to the City of Duluth Police Department for a breath test on the Intoxilyzer 5000. The officer testified that he was certified by the Georgia Bureau of Investigation, Division of Forensic Sciences to administer tests on an Intoxilyzer 5000, and a copy of his permit was entered into evidence. The State also entered into evidence certificates of inspection for the quarterly inspections of the Intoxilyzer performed on November 26, 2010 and February 14, 2011. In compliance with OCGA § 40-6-392 (f), each certificate represented that the Intoxilyzer had been thoroughly inspected, tested, and standardized and that " all of its electronic and operating components prescribed by its manufacturer are properly attached and are in good working order." The officer stated [329 Ga.App. 235] that the Intoxilyzer 5000 appeared to be functioning properly on the morning of Denstaedt's test. Prior to accepting Denstaedt's breath sample, the machine conducted a diagnostic check, which revealed no problems. Denstaedt provided breath samples at 2:57 a.m. and 3:00 a.m. Both samples indicated an alcohol concentration of 0.132 grams. The officer testified that he had conducted other breath tests on the Intoxilyzer prior to and after the date of Denstaedt's breath test, and the machine appeared to be functioning properly at all times.
In his single enumeration of error, Denstaedt argues that his trial counsel was ineffective because she was unable to admit into evidence print cards from the November 26, 2010 quarterly inspection of the Intoxilyzer 5000. Denstaedt's claim of error fails.
In order to prevail on his claim of ineffective assistance, [Denstaedt] must show both that counsel's performance was deficient and that the deficiency prejudiced him such that there is a reasonable probability that, but for the deficiency, the outcome of his trial would have been different. This burden, although not impossible to carry, is a heavy one. Moreover, a court need not determine whether counsel's performance was ...