Jefferson Allen appeals his convictions for driving under the influence of alcohol, disobedience of a traffic control device, and violation of Georgia’s open container law. On appeal he contends that the trial court erred in 1 admitting similar transaction evidence, 2 giving its jury charge relating to Allen’s refusal to submit to a chemical test, 3 giving its jury charge on the presumptions drawn from specific alcohol concentrations in the defendant’s blood, and 4 considering the similar transaction offense in aggravation of Allen’s sentence. In our original opinion, issued February 2, 2004, we affirmed the judgment of conviction entered against Allen but concluded that the trial court erred in considering Allen’s prior nolo plea for sentencing purposes. On the State’s motion for reconsideration, we have reached the conclusion that Allen was estopped from attacking the nolo plea under the authority of OCGA § 40-13-33 a, as more fully discussed in Division 4, infra. We therefore affirm both the judgments of conviction and sentence. Viewed in the light most favorable to the verdict, the evidence reveals that an officer pulled Allen over after he saw Allen run a red light. The officer detected a very strong odor of alcohol coming from Allen’s car. The officer asked Allen to step out of the car, and Allen complied. The officer observed that Allen’s eyes were bloodshot, that his speech was slurred, and that he was unsteady on his feet. Allen admitted that he had been drinking.
The officer gave Allen a portable breath test, which registered positive for alcohol. The officer also administered two field sobriety tests, both of which Allen failed. Based on his observations, the officer concluded that Allen was under the influence of alcohol to the extent that it was less safe for him to drive, and arrested him. The officer read Allen the Georgia Implied Consent warning, and Allen refused to submit to a breath test.
