Moon v. State , 211 Ga. App. 559 ( 1993 )

Cooper, Judge,

dissenting.

I dissent because I disagree with the majority’s conclusion that the evidence permits the inference that appellant was driving while intoxicated. There is evidence that appellant was driving the car based on his admission. There is also evidence that appellant was intoxicated at the time that he encountered the trooper at approximately 11:30 p.m. However, there is no evidence as to what time the truck ran into the ditch, how long the truck had been there when the trooper was dispatched to the scene or the time span over which appellant consumed alcohol. Upon arriving at the scene, the trooper did not ascertain whether the engine of the car was warm and stated that he only guessed that the truck had veered into the ditch a short time earlier. In my opinion this evidence is insufficient as a matter of law to authorize the inference that appellant was driving while intoxicated. Groom v. State, 187 Ga. App. 398 (2) (370 SE2d 643) (1988); Wilcher v. State, 124 Ga. App. 534 (184 SE2d 505) (1971). The majority also draws an unfavorable inference from the fact that appellant failed to state that he was not intoxicated while driving. This seems to be an impermissible inference arising from appellant’s absolute right to remain silent. See Howard v. State, 237 Ga. 471, 474 (228 SE2d 860) (1976). Because I believe that appellant’s conviction for driving under the influence was not supported by the evidence, I respectfully dissent.

Decided December 2, 1993 Reconsideration denied December 20, 1993. Chance, Maddox & Smith, David K. Smith, for appellant. Thomas J. Campbell, District Attorney, Sharon M. Fox, Assistant District Attorney, for appellee. I am authorized to state that Judge Blackburn joins in this dissent.