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 to 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 SE2d 479 2013. So viewed, the evidence shows that a trooper with the Georgia State Patrol observed Lavertu cross the yellow center line 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 backwards. With her head back and eyes closed, Lavertu was unable to touch her nose. While attempting to perform the horizontal 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.
