2021 Georgia Code
Title 24 - Evidence
Chapter 4 - Relevant Evidence and Its Limits
§ 24-4-417. Evidence of Similar Acts in Prosecutions for Violations of Code Section 40-6-391

1. In a criminal proceeding involving a prosecution for a violation of Code Section 40-6-391, evidence of the commission of another violation of Code Section 40-6-391 on a different occasion by the same accused shall be admissible when:
   1. The accused refused in the current case to take the state administered test required by Code Section 40-5-55 and such evidence is relevant to prove knowledge, plan, or absence of mistake or accident;
   2. The accused refused in the current case to provide an adequate breath sample for the state administered test required by Code Section 40-5-55 and such evidence is relevant to prove knowledge, plan, or absence of mistake or accident; or
   3. The identity of the driver is in dispute in the current case and such evidence is relevant to prove identity.
2. In a criminal proceeding in which the state intends to offer evidence under this Code section, the prosecuting attorney shall disclose such evidence to the accused, including statements of witnesses or a summary of the substance of any testimony that the prosecuting attorney expects to offer, at least ten days in advance of trial, unless the time is shortened or pretrial notice is excused by the judge upon good cause shown.
3. This Code section shall not be the exclusive means to admit or consider evidence described in this Code section.

(Code 1981, §24-4-417, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)

- Character evidence, Fed. R. Evid. 404.

Notice of prosecution's intent to present evidence of similar transactions, Ga. S. Ct. R. 31.3.

- For annual survey on evidence law, see 68 Mercer L. Rev. 121 (2016).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former O.C.G.A. § 24-2-2 are included in the annotations for this Code section.

- Prosecution's characterization of defendant as an "experienced drinker" because defendant had testified that defendant was not rendered intoxicated by .21% blood alcohol did not place defendant's character in issue. Rielli v. State, 174 Ga. App. 220, 330 S.E.2d 104 (1985) (decided under former O.C.G.A. § 24-2-2).

- Trial court did not abuse the court's discretion by allowing the state to introduce evidence of the defendant's prior DUI convictions, after the defendant refused to undergo sobriety testing, stating that it was the defendant's third DUI. Hammond v. State, 334 Ga. App. 781, 780 S.E.2d 440 (2015).

Defendant's conviction for driving under the influence (DUI) and other crimes was affirmed because the defendant's prior DUI conviction was properly admitted since the conviction was relevant to the issue of the defendant's knowledge of the consequences of both consenting to and refusing the tests, and its probative value outweighed any prejudice. Kim v. State, 337 Ga. App. 155, 786 S.E.2d 532 (2016).

Trial court did not err in admitting the defendant's prior driving under the influence (DUI) conviction because the trial court did not abuse the court's discretion in finding that the prior DUI was relevant to prove knowledge; and proof of the defendant's prior DUI conviction could strengthen the inference that the fact-finder could draw from the defendant's refusal to take the state-administered test in the current DUI prosecution, that had the defendant done so, it would have shown the presence of alcohol. Monroe v. State, 340 Ga. App. 373, 797 S.E.2d 245 (2017).

Evidence of the defendant's prior driving under the influence (DUI) conviction was admissible because, based on the presence of the word "shall," the supreme court concluded that this rule contained a presumption in favor of the admission of such evidence; proof of the defendant's prior DUI could allow the factfinder to infer that the defendant had an awareness that the defendant's ingestion of an intoxicant impaired the defendant's ability to drive safely; and such awareness might help to explain the defendant's refusal to submit to the portable breath test. Gibbs v. State, 341 Ga. App. 316, 800 S.E.2d 385 (2017).

In the defendant's DUI case, in which the defendant refused to submit to a blood test, the defendant's December 2011 DUI was properly admitted to prove the defendant's knowledge and intent, pursuant to O.C.G.A. § 24-4-417(a)(1). Danley v. State, 342 Ga. App. 61, 802 S.E.2d 851 (2017), overruled on other grounds by McClure v. State, 306 Ga. 856, 834 S.E.2d 96 (2019).

Eight-year lapse between a prior conviction for DUI and the charges at issue did not presumptively lessen the probative value of the prior act, but was a factor to be considered when balancing the probative value of the evidence against the potentially prejudicial impact of the evidence, and the trial court was authorized to find that the probative value was not substantially outweighed by the prejudicial impact of the evidence. Miller v. State, 343 Ga. App. 197, 806 S.E.2d 648 (2017).

Defendant failed to show that the trial court abused the court's discretion in admitting evidence of a prior driving under the influence (DUI) incident because the state proffered the deputy's testimony about the June 2011 driving incident for the purpose of proving that the defendant had acquired knowledge of the testing procedures used by the state to secure a DUI conviction and had developed a similar plan to refuse consent in the present case as part of an effort to avoid a DUI conviction; and, in light of the state's proffer, the defendant's prior DUI incident was relevant for proving knowledge and plan. Adams v. State, 344 Ga. App. 159, 809 S.E.2d 87 (2017), aff'd, 306 Ga. 1, 829 S.E.2d 126 (2019).

Defendant failed to show that the trial court abused the court's discretion in admitting evidence of a prior driving under the influence (DUI) incident because, by choosing the word "commission" rather than "conviction" in this rule, the General Assembly intended for a prior DUI incident to be admissible when there was evidence that the DUI was committed by the criminal defendant, even if the defendant was not convicted of that offense. Adams v. State, 344 Ga. App. 159, 809 S.E.2d 87 (2017), aff'd, 306 Ga. 1, 829 S.E.2d 126 (2019).

After the defendant was arrested for driving under the influence (DUI) and refused to submit to a state administered breath test, the state's motion to introduce evidence of other DUI violations was improperly denied as the danger of undue prejudice did not substantially outweigh the probative value of the evidence of other occasions when the defendant drove under the influence because the state demonstrated the state's prosecutorial need for the extrinsic act evidence; the close proximity in time between the three prior DUI arrests and the charged offense; and the overall similarity between the three prior arrests and the current charge, especially with regard to the defendant's experiences with the requested state administered tests. State v. Voyles, 345 Ga. App. 634, 814 S.E.2d 767 (2018).

- In a prosecution for driving under the influence, failure to stop at a stop sign, violating the open container law, and improper lane usage, evidence that defendant previously drove while under the influence of alcohol and with an open container in the car was admissible as circumstantial evidence of defendant's bent of mind and course of conduct on the night in question. McCullough v. State, 230 Ga. App. 98, 495 S.E.2d 338 (1998) (decided under former O.C.G.A. § 24-2-2).

Trial court did not abuse the court's discretion by admitting evidence of a prior accident involving an incident of driving under the influence to show bent of mind and course of conduct; probative value of the prior incident was not outweighed by the prejudicial effect of the evidence. Harris v. State, 272 Ga. App. 366, 612 S.E.2d 557 (2005) (decided under former O.C.G.A. § 24-2-2).

Defendant's three prior driving under the influence (DUI) convictions were properly admitted in defendant's DUI trial as similar transaction evidence to show bent of mind and course of conduct as in each of the previous cases, defendant was arrested for DUI while driving late at night and consented to a breath test that showed that defendant was well over the legal limit; an almost 15-year lapse of time after one previous conviction went to the weight of the evidence. Moody v. State, 273 Ga. App. 670, 615 S.E.2d 803 (2005) (decided under former O.C.G.A. § 24-2-2).

- In an action for, inter alia, DUI, the trial court properly concluded that evidence of the defendant's refusal to submit to a state-administered breath test was inadmissible, but then improperly failed to analyze whether evidence of the existence of the arrest and other circumstances were otherwise admissible pursuant to O.C.G.A. § 24-4-417. State v. Johnson, 354 Ga. App. 447, 841 S.E.2d 91 (2020).

- In a prosecution for vehicular homicide and driving under the influence (DUI), the trial court properly allowed evidence regarding the defendant's prior DUI, as the defendant had pled guilty to that offense, the blood test results appeared on the uniform traffic citation, a certified copy of the accusation and plea was entered into evidence, and an officer testified that the defendant was the person arrested on that charge. Hurston v. State, 278 Ga. App. 472, 629 S.E.2d 18 (2006) (decided under former O.C.G.A. § 24-2-2).

- Trial court did not err in admitting similar transaction evidence regarding a previous incident when defendant, while intoxicated, drove through a chain link fence and overturned a car as the evidence was relevant to defendant's bent of mind to get behind the wheel of a vehicle when it was less safe for defendant to do so, especially since defendant claimed in the present case that defendant had not been driving when the van defendant was in struck a guardrail, and the evidence showed that defendant smelled of alcohol. Lanning v. State, 261 Ga. App. 480, 583 S.E.2d 160 (2003) (decided under former O.C.G.A. § 24-2-2).

- Trial court erred in limiting the state's use of evidence of the defendant's prior DUI conviction to the state's rebuttal case because O.C.G.A. § 24-4-417(a)(1) permitted the state to introduce such evidence in the state's case in chief. State v. Tittle, 335 Ga. App. 588, 782 S.E.2d 487 (2016).

Cited in State v. Brown, 333 Ga. App. 643, 777 S.E.2d 27 (2015); State v. Voyles, 355 Ga. App. 903, 846 S.E.2d 170 (2020).

RESEARCH REFERENCES

ALR.

- Driving While Intoxicated: Duty of Law Enforcement Officer to Advise Suspect of Their Rights Under Implied Consent Law, Including Offers of Test Alternatives, 51 A.L.R.7th 2.