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Canelas v. State

Court of Appeals of Georgia, Third Division

March 29, 2018

CANELAS
v.
THE STATE.

          ELLINGTON, P. J., BETHEL, J., and SENIOR APPELLATE JUDGE PHIPPS

          Ellington, Presiding Judge.

         Following a bench trial, the State Court of Gwinnett County found Roger Canelas guilty of driving under the influence of alcohol to the extent it was less safe to drive, OCGA § 40-6-391 (a) (1); driving while having an alcohol concentration of 0.08 grams or more (DUI per se), OCGA § 40-6-391 (a) (5); and driving without a valid driver's license, OCGA § 40-5-20 (a). Following the denial of his motion for a new trial, Canelas appeals, challenging the sufficiency of the evidence. Canelas also argues that the trial court erred in denying his motion to suppress (1) because there was not probable cause to arrest him for DUI, and (2) because he was not placed under actual, valid arrest prior to the reading of the implied consent notice. For the reasons set forth below, we reverse Canelas's conviction for driving without a valid license, vacate his sentence, and remand this case to the trial court for resentencing. We affirm the judgment in all other aspects.

         Viewed in the light most favorable to support the verdict, [1] the evidence shows the following. On June 12, 2016, a witness called 911 to report a single-vehicle motorcycle crash. Paramedics responded first and assessed Canelas's condition; he had abrasions on his arm and was dazed and confused. A police officer responded at 1:30 a.m., along with a field training supervisor, and found a motorcycle on its side, Canelas on the ground about twenty yards away, and a helmet, a shoe and other articles of clothing scattered between him and the motorcycle. The road where Canelas had crashed was a residential road, on a straight section one-tenth mile past a 90-degree turn. The curb near the motorcycle had been recently scraped and gouged. There was vomit, which smelled of alcohol, in Canelas's helmet and on his beard and jacket. As paramedics prepared to transport Canelas to the hospital, he stated that he had been at a friend's house, where he drank "a couple of beers." He told the officer that he did not remember leaving his friend's house and did not know how he got to the scene of the crash because he would not have left his friend's house after drinking.

         The officer followed the ambulance to the hospital and spoke with Canelas in his treatment room. The officer's training supervisor was also present. The arresting officer noticed that Canelas had bloodshot eyes and a strong odor of alcohol about his person. Asked if he had had anything to drink, Canelas again responded the he had drunk "a couple of beers." The officer verbally told him, "You are under arrest for DUI-less safe, " and read the implied consent notice, concluding with a request that he submit to a state administered chemical test of his blood as provided in the implied consent law. The officer testified that he did not put Canelas in handcuffs because he was on the gurney and nurses were putting IVs in his arm and treating the bruising and abrasions on his arm, and he did not want to interfere with the medical treatment. Canelas gave his consent to the blood test, and at 2:46 a.m. an ER nurse drew his blood for testing. The officer left Canelas, who was still receiving medical treatment, in the custody of the hospital security staff and went to the police station with the evidence. Within the hour, the officer sought and obtained an arrest warrant. For reasons not apparent in the record, another officer served the warrant a few days later. The result of the blood alcohol test was a level of 0.153 grams per 100 ml.

          1. Canelas challenges the sufficiency of the evidence as to each offense. On appeal from a criminal conviction, the appellate court

view[s] the evidence in the light most favorable to the verdict[, ] and an appellant no longer enjoys the presumption of innocence. [The appellate court] determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979), and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, [the appellate court] must uphold the jury's verdict.

(Citations omitted.) Rankin v. State, 278 Ga. 704, 705 (606 S.E.2d 269) (2004).

         (a) As a threshold matter, we address the State's contention that Canelas failed to preserve this issue. Specifically, the State argues that he "retracted" the issue of the sufficiency of the evidence by challenging the sufficiency of the evidence in his motion for new trial, even though he had the right to directly appeal on that basis without first submitting the issue to the trial court, [2] and then opting to omit the transcript of the hearing on his motion for a new trial from the appellate record. The State argues:

Unfortunately, neither Appellee nor this Court knows to what extent this issue was discussed at the motion for new trial hearing, because Appellant specifically chose not to include the transcript of that hearing on appeal. This Court is therefore precluded from evaluating the nature and extent to which Appellant argued this issue; the extent to which the trial court reconsidered its assessment of the evidence at trial; and whether or not the trial court made any factual findings in conjunction with its ruling on the Amended Motion which may be subject to a different standard of review.

         This argument lacks authoritative support. Whether the evidence presented at trial was legally sufficient is plainly a question of law which on appeal we assess independently of the trial court's adjudication, through entry of judgment, that the evidence was sufficient.[3] Whatever transpired at the evidentiary hearing on Canelas's motion for a new trial is simply irrelevant to this Court's consideration of whether the evidence presented at trial was sufficient under the applicable standard. See Rowan v. State, 338 Ga.App. 773, 774 (1) (792 S.E.2d 400) (2016) (rejecting the State's suggestion that, because the appellant had not argued the issue of the sufficiency of the evidence before the trial court in connection with his motion for new trial, the issue was not properly before this Court on appeal); Thomas v. State, 322 Ga.App. 734, 734-735 (1) (746 S.E.2d 216) (2013) (accord).

         (b) Canelas contends that there was no evidence of the cause of his motorcycle crash and no other evidence that his driving was less safe. We conclude that, taken together, evidence that Canelas lost control of his motorcycle on a straight stretch of road, coupled with the evidence of his blood alcohol level (nearly double the level that supports a conviction for DUI, per se), his professed lack of memory of leaving his friend's house or driving, and his addled state of mind authorized the trial court to find him guilty of DUI, less safe. Jones v. State, 187 Ga.App. 132, 132-133 (1) (369 S.E.2d 509) (1988) (The evidence authorized conviction of DUI, less safe, where an officer found the defendant's car stopped at a railroad crossing with the defendant slumped over the steering wheel with the engine still running and the transmission in "drive, " the defendant fell getting out of his car and was unsteady on his feet, and the defendant's eyes were bloodshot, his speech was slurred, and there was the odor of alcohol about him.); Blackwell v. State, 180 Ga.App. 253, 254 (349 S.E.2d 13) (1986) (The evidence authorized conviction of DUI, less safe, where the defendant was involved in an accident and an officer observed that his breath and person smelled of alcohol, his eyes were bloodshot and he was unsteady on his feet.).[4]

         (c) Canelas contends that there was no evidence that he was driving within three hours before the chemical test that showed he had a blood alcohol concentration of 0.153 grams per ml.[5] Canelas's blood was drawn at 2:46 p.m. The arresting officer testified that he arrived at the scene at 1:30 a.m. while Canelas was being evaluated and treated by paramedics. The evidence supported an inference that Canelas was driving, and crashed his motorcycle, within three hours before his blood was drawn. Smith v. State, 325 Ga.App. 405, 407 (750 S.E.2d 758) (2013); State v. Gaggini, 321 Ga.App. 31, 36 (2) (740 S.E.2d 845) (2013); Lee v. State, 236 Ga.App. 128, 129-130 (2) (511 S.E.2d 238) (1999).

         (d) Canelas contends that there was insufficient evidence that he lacked a valid driver's license. The State concedes that the evidence at trial, which consisted of the arresting officer's testimony that he ran Canelas's driver's license through a verification program on a computer in his squad car and he "believe[d]" it came back as a valid license but he did not notice the "M" designation for a motorcycle qualification, was insufficient to support a ...


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