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MANLEY v. THE STATE.
A89A0676.
DEEN, Presiding Judge.
D.U.I. Gwinnett State Court. Before Judge Cook.
The appellant, Charles Manley, was arrested for driving under the influence after he was stopped by police for exiting an interstate highway by an exit ramp that was closed for construction. An intoximeter test indicated a blood alcohol content of .13 grams percent. Manley was charged with driving under the influence in one count, and driving with a blood alcohol content of .12 or more in another count.
In addition to charging the jury on OCGA 40-6-391(a) (4), the trial court told the jury that (1) if it found Manley's blood alcohol content to be .10 or more, it might infer that Manley was under the influence; (2) if it found Manley's blood alcohol content to be more than .05 but less than .10, no inference either way arose; and (3) if it found Manley's blood alcohol content to be less than .05, Manley would be presumed to be not under the influence. The trial court would not give Manley's requested jury charge about giving the defendant the benefit of any margin of error the jury may find in the intoximeter machine. The trial court subsequently declared a mistrial on the "per se" count alleging a blood alcohol content of .12 or more, because the jury was hopelessly deadlocked. The jury returned a verdict of guilty on the general count of driving under the influence of alcohol, and this appeal followed. Held:
Pretermitting the issue of whether the trial court erred in refusing to give Manley's requested charge on the margin of error, any error would be harmless since the jury found Manley guilty only of the general count of driving under the influence of alcohol. Harm as well as error is necessary before reversible error is shown. Stoe v. State, 187 Ga. App. 171 (369 SE2d 793) (1988).
Gerald N. Blaney, Jr., Solicitor, George L. Kimel, Faye S. Pous, Assistant Solicitors, for appellee.
Turner & Lennard, Donald C. Turner, Mark A. Lewis, for appellant.
DECIDED APRIL 19, 1989.
Thursday May 21 11:22 EDT


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