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Noble v. State

O.C.G.A. § 40-6-391 a 5 provides adequate notice to a person of ordinary intelligence that driving with an alcohol concentration in excess of 0.08 grams, as measured by grams of alcohol per liters of breath, is criminal conduct.

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Ben Edward Noble was convicted at a bench trial and sentenced on two counts of driving under the influence and another vehicular infraction arising out of two incidents three months apart. Finding no error in the trial court’s rulings, we affirm.

1. Jurisdiction is in this Court based on Noble’s meritless challenge to the constitutionality of OCGA § 40-6-391 a 5, which makes it illegal to drive a motor vehicle with an alcohol concentration greater than 0.08 grams. OCGA § 40-1-1 1 defines “alcohol concentration,” inter alia, in terms of grams of alcohol per liters of “breath.” Noble’s claim is that the statute is unconstitutionally vague because the term “breath” is not defined therein. When measured by a “common understanding” of the term “breath,” we find that OCGA § 40-6-391 a 5 provides more than adequate notice to a person of ordinary intelligence that driving with an alcohol concentration in excess of 0.08 grams, as measured by grams of alcohol per liters of breath, is criminal conduct. See generally Connally v. State, 265 Ga. 563, 564 3 458 SE2d 336 1995. Accord Bohannon v. State, 269 Ga. 130 3 497 SE2d 552 1998 OCGA § 40-6-391 a 5 not void for vagueness because of any difficulty a driver may have in determining amount of alcohol in his system.

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