Defendant William R. Marryott was convicted of driving under the influence of alcohol to the extent it was less safe for him to drive OCGA § 40-6-391 a 1, driving under the influence of alcohol with a blood alcohol concentration of 0.08 grams or more within three hours of driving as a result of alcohol consumed before the driving activity ended OCGA § 40-6-391 a 5, and violation of the open container law OCGA § 40-6-253 b. Marryott appeals from the denial of his amended motion for new trial challenging the sufficiency of the evidence as to his DUI convictions. Otherwise, he claims that the superior court erred in rehabilitating a prospective juror; erred in refusing to strike a juror for cause as a volunteer in the prosecutor’s office; erred in charging the jury that it could convict him of DUI in a manner not charged by the accusation; and erred in charging the jury that it could convict him of DUI to the extent it was less safe for him to drive absent evidence showing that he operated his vehicle in a less safe manner. These claims of error as without merit, we affirm. Marryott and his wife, Kimberley, left a Cartersville party for the their home in Kennesaw at approximately 11:00 p. m., Saturday, November 17, 2001, having arrived about two and a half hours earlier. As the couple left the party, Ms. Marryott was upset in that Marryott had been drinking because they had earlier agreed not to do so during her pregnancy. Ms. Marryott testified that she drove on the way home because she had consumed no alcohol. She further testified that they got lost and argued; that their quarrel grew worse after Marryott had her make an incorrect turn; that she stopped the car and walked away, leaving Marryott because of his tone of voice and abusive language; and that she “ran walked”a mile to I-75 where she called her brother-in-law in Acworth by cell phone who then picked her up.
Responding to a suspicious vehicle dispatch at approximately 12:30 a. m. that night, Patrolman S. Witt of the Bartow County Sheriff’s Department found Marryott asleep in the driver’s seat of the vehicle, vomit still dripping to the ground from the edge of the window where his head rested and several open beer bottles in plain view. After being awakened and getting out of the car, Marryott told Patrolman Witt that he was waiting for friends and had not driven. Patrolman Witt administered field sobriety tests on the scene, each of which Marryott failed. Marryott then contradicted himself, admitting for the first time that he had pulled over when he realized that he was intoxicated. Two State-administered breath tests, given upon Marryott’s consent, determined his blood-alcohol-content to be .163 and .155, respectively. Held :
