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Gilmore v. State

Evidence supported the trial court's determination that the defendant's driving ability was impaired at the time of the accident even though the defendant claimed that the alcohol in his system was from a bottle he finished off after the accident.

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After a bench trial in the Probate Court of Butts County, Charles M. Gilmore, Jr. was convicted of the offenses of failure to yield and DUI. The Superior Court of Butts County affirmed the convictions, and Gilmore appeals. He appeals both convictions, raising three enumerations of error. We affirm Gilmore’s conviction for DUI, but we find that the trial court erred in denying his motion to quash the accusation for failing to yield; we therefore reverse that conviction.

The record shows that Gilmore was involved in a two-car collision at the intersection of Higgins Road and Highway 87 in Butts County on a rainy, foggy afternoon. The police were called at 2:00 p.m., and Trooper Daniel Fagan of the Georgia State Patrol arrived at the scene at 2:28 p.m. to find another officer already there. Fagan testified that when he arrived and began questioning Gilmore, he “did smell a strong beverage on his person.” Fagan testified that when he asked Gilmore when he had his last drink, Gilmore responded “about an hour before the accident.” Fagan then placed him under arrest for DUI and read him the implied consent rights. The Intoxilyzer 5000 test results were .131 on the first test and .133 on the second.

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