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Masood v. State

The defendant admitted drinking, he failed two field sobriety tests, he tested positive on alco-sensor test and he refused to take state-administered test.

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Following a jury trial, Naveed Masood was convicted of one count of driving under the influence to the extent that he was a less-safe driver DUI less-safe1 and acquitted by the jury of failing to maintain his lane.2 On appeal, Masood argues that the trial court erred in denying his motion for “judgment notwithstanding the verdict” because the jury’s acquittal on the second count resulted in a fatal variance between the State’s accusation for DUI less-safe and the theory under which he was convicted. For the reasons set forth infra , we affirm. Viewed in the light most favorable to the jury’s verdict,3 the record shows that on June 25, 2010, an officer with the Doraville Police Department DUI Task Force purportedly observed Masood’s vehicle committing a variety of moving violations. Specifically, the officer testified that Masood’s vehicle straddled two lanes, drifted into a turn lane, made a wide turn, and then swerved. And shortly thereafter, the officer initiated a traffic stop.

Upon approaching Masood’s vehicle, the officer detected an odor of alcohol and noticed that Masood’s eyes were red and watery. And when questioned as to whether he had consumed any alcohol that day, Masood admitted to drinking one beer. The officer then asked Masood to step outside of the vehicle to the rear so that he could evaluate whether Masood still smelled of alcohol after being separated from the passengers. Masood complied, and the officer detected the scent of alcohol about Masood’s breath and person from as far away as three feet.

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