Opinion
44771.
SUBMITTED SEPTEMBER 3, 1969
DECIDED SEPTEMBER 12, 1969.
Driving U. I. Atlanta City Court. Before Judge Johnson.
Neil L. Heimanson, Dan C. Mitchell, for appellant.
W. Paul Walker, Solicitor, Robert A. Harris, for appellee.
Where defendant and another were sitting in a car with the lights on and motor running, on the parking lot of a closed business at 2:30 a. m. and the police went to the car, checked the driver's license of the woman behind the wheel found that she had a strong odor of alcohol on her breath, that she talked in a slurring manner and that when she got out of the car she walked in a weaving and unsteady manner, admitting to the officers that she had consumed "one cocktail," and the officers suggested to her that she allow the other woman, who appeared to be sober, to drive the car because if defendant should drive it they would have to charge her with driving under the influence of intoxicants, but she refused and drove her car out into the street and proceeded straddling the line separating traffic lanes, after which the police, who had followed, arrested her for driving under the influence, informed her of the implied consent law and she refused to have a blood test made or to take the breatholator test, and the two arresting officers testified that from her manner of speech, her manner of walking, the odor of alcohol on her breath, and her manner of driving the vehicle down the street, it was their opinion that she was intoxicated to the extent that it was less safe for her to drive than if she had not been so affected. Held:
1. The evidence authorized a verdict of guilty of the offense of driving while under the influence of intoxicants. Echols v. State, 104 Ga. App. 695 ( 122 S.E.2d 473); Spaulding v. State, 111 Ga. App. 855 ( 143 S.E.2d 520). Cf. Flournoy v. State, 106 Ga. App. 756 ( 128 S.E.2d 528); Williams v. State, 111 Ga. App. 588 ( 142 S.E.2d 409).
2. Error cannot be shown in the denial of a motion for a directed verdict of acquittal in a criminal case. Pritchard v. State, 224 Ga. 776, 779 ( 164 S.E.2d 808).
3. Defendant's statement to the arresting officers that she had consumed "one cocktail" did not amount to a confession that she was guilty of driving a motor vehicle on the public streets or highways while under the influence of intoxicants. Consequently, there was no duty on the court to conduct a hearing to determine whether the statement was voluntarily made pursuant to the ruling in Jackson v. Denno, 378 U.S. 368 ( 84 SC 1774, 12 LE 2d 908, 1 ALR3d 1205). Sellers v. Dutton, 223 Ga. 358 ( 155 S.E.2d 23); Haggard v. State, 113 Ga. App. 185 (4) ( 147 S.E.2d 469). The statement was admitted without objection, and this ground is without merit. Taylor v. State, 220 Ga. 801 (3) ( 142 S.E.2d 239).
4. There is no merit in the contention that the court erred in failing to charge on circumstantial evidence. There was direct evidence which amply authorized the conviction. Cliett v. State, 132 Ga. 36 (1) ( 63 S.E. 626).
5. "In the absence of a timely written request, the mere fact that opinion evidence was introduced does not require an instruction as to the weight of such evidence." Fort v. State, 31 Ga. App. 525 ( 121 S.E. 128).
6. (a) It was not error to refuse a written request to charge Number 1, the substance of which was included in the charge as given. Central R. Bkg Co. v. Maltsby, 90 Ga. 630 (2) ( 16 S.E. 953); Carnes v. State, 115 Ga. App. 387 (6) ( 154 S.E.2d 781).
(b) Requests Numbers 2, 3 and 4 were not adjusted to the evidence. Each of them was predicated on the premise that the defendant committed no offense in the presence of the arresting officers, in which event the arrest would have been illegal. However, the evidence demanded a finding that the offense, if committed, was committed in the presence of the officers, authorizing the arrest without a warrant. Howell v. State, 162 Ga. 14 (6c) ( 134 S.E. 59); Earl v. State, 124 Ga. 28, 29 (2) ( 52 S.E. 78); Knight v. State, 26 Ga. App. 42 ( 105 S.E. 642).
7. Since there was evidence from the arresting officers that the defendant was informed, at the time of her arrest and again afterward, of the provisions of the implied consent law, as found in Code Ann. § 68-1625.1, and of the filing of an affidavit with the State Patrol relative to her refusal to have a blood test or to take a breatholator test, and defendant denied that she had been so informed and asserted that she had demanded a test, it was not error to charge the provisions of that law.
8. In the absence of a timely written request there is no error in failing to define a misdemeanor. Pickens v. State, 132 Ga. 46 ( 63 S.E. 783); Washington v. State, 118 Ga. App. 729 (2) ( 165 S.E.2d 431); Turnipseed v. State, 53 Ga. App. 194, 203 ( 185 S.E. 403); Fort v. State, 31 Ga. App. 525 (3), supra; McLendon v. State, 14 Ga. App. 737 (3) ( 82 S.E. 317).
9. The charge fully and properly covered the matter of the essential necessary to be proven in order to authorize a conviction. It included those alluded to in Harper v. State, 91 Ga. App. 456 (2) ( 86 S.E.2d 7) and in Sims v. State, 92 Ga. App. 169 ( 88 S.E.2d 186), relied upon in appellant's brief.
Judgment affirmed. Bell, C. J., and Deen, J., concur.