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MARSH v. THE STATE.
A93A2007.
POPE, Chief Judge.
D.U.I. Cobb State Court. Before Judge Adams.
Following a bench trial, defendant was convicted of driving while under the influence of alcohol to the extent that it was less safe for him to drive. OCGA 40-6-391 (a).
Defendant argues that the evidence that he was actually driving the truck while intoxicated was purely circumstantial and insufficient to exclude every reasonable hypothesis except that of guilt beyond a reasonable doubt. See Groom v. State, 187 Ga. App. 398 (370 SE2d 643) (1988). Unlike Groom, however, there is substantial evidence in this case that defendant's ability to drive had been affected by alcohol at the time of his arrest. The fact that he was the driver of the truck was established by the absence of anyone else, his possession of the keys, and his own statement that he was driving to his girl friend's house. Furthermore, the reasonable possibility that he was not under the influence at the time he left the truck to get the gas was excluded by the degree of his intoxication, the warmth of the hood on a March night, and defendant's statement that he had not consumed any alcohol for two hours. This evidence was sufficient to allow the trial court to conclude that defendant was guilty of driving under the influence beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
Benjamin F. Smith, Jr., Solicitor, Barry E. Morgan, Aurieanne Sneed, Assistant Solicitors, for appellee.
Spruell & Dubuc, Brian M. Dubuc, for appellant.
DECIDED JANUARY 5, 1994 -- RECONSIDERATION DENIED JANUARY 27, 1994.
Thursday May 21 06:48 EDT


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