Following a bench trial, Barry Scott Head was convicted of driving while under the influence of any drug to the extent that it was less safe for him to drive, in violation of OCGA § 40-6-391 a 2. He was also convicted of driving with a controlled substance in his blood, in violation of OCGA § 40-6-391 a 6, although that conviction was merged into his DUI-less safe conviction. On appeal, Head contends both that the evidence was insufficient to support his DUI-less safe conviction, and that OCGA § 40-6-391 a 6 violates the equal protection clause of the Fourteenth Amendment of the United States Constitution. We conclude that the evidence was insufficient to support Head’s DUI-less safe conviction, and therefore reverse his conviction on that charge. We further reject Head’s constitutional challenge to OCGA § 40-6-391 a 6, and therefore affirm that conviction. Nonetheless, since Head’s OCGA § 40-6-391 a 6 conviction was merged into his DUI-less safe conviction for sentencing purposes, we remand this case to the trial court for resentencing so that Head can be sentenced on the merged offense. On appeal from a bench trial, we view the evidence in favor of the factfinder’s conclusion, giving due regard to the trial court’s opportunity to judge witness credibility. We no longer presume the defendant is innocent, but only determine if the evidence is sufficient to sustain the convictions. Citation and punctuation omitted. Landine v. State , 295 Ga. App. 761, 761-762 673 SE2d 124 2009. See Jackson v. Virginia , 443 U. S. 307 99 SC 2781, 61 LE2d 560 1979. So construed, the evidence showed that on April 15, 2007 at approximately 1:45 a.m., Head was involved in a traffic accident in which he collided with the broadside of a charter bus that had attempted to make a left hand turn across Head’s lane of traffic. Although the bus driver received a traffic infraction and was faulted with the accident, the responding officer’s suspicions were raised when he smelled the odor of an alcohol beverage coming from Head as Head was being treated at the scene by emergency medical personnel. Upon further investigation, the officer noted that Head had a clear line of sight and what appeared to be time to avoid the accident, yet he saw no evidence that Head attempted to stop prior to the collision and had made only a last moment attempt to swerve. The officer also learned that Head had been at a social function immediately prior to the accident.
Based upon this information, the officer believed Head to be intoxicated; he read Head his implied consent rights and obtained Head’s consent to submit to a state administered blood test. Head admitted at that time that he had consumed alcohol earlier in the evening. The officer thus issued Head a citation for driving under the influence of alcohol to the extent it was less safe, pursuant to OCGA § 40-6-391 a 1.
