The Southern District held that the prosecutor’s mention of consuming 12 bottles of beer was not prejudicial, and that there was sufficient evidence for a reasonable juror to conclude the Defendant was guilty of a DWI, even if he was never pulled over in the act of driving.

That’s right. The man was not stopped by police. Testimonial evidence that he had consumed 13 bottles of beer presented at trial and that he got in his car and drove away was enough to show that he was driving while intoxicated. Even if there was no evidence of intoxication from a breathalyzer or from drawing his blood of his blood alcohol content.

Defendant appealed on two grounds. First, was that the Trial Court abused its discretion in deny his motion for judgment of acquittal because the State presented insufficient evidence for a reasonable juror to find him guilty of a charge beyond a reasonable doubt.

Defendant argued: “[i]t was impossible for a reasonable juror to find [Defendant] guilty based on the evidence presented at trial as the time interval between his last possible consumption of alcohol and his departure from the Casino dispelled any reasonable doubt that he was intoxicated.”  The timeline of consumption having occurred between 5:15 p.m. and 10:20 p.m., then with the Defendant driving off at 11:36 p.m.  A total time of a little over six hours since the consumption of the first beer.

The facts presented, and later observed on video, showed that the Defendant arrived at a Casino at 5:15 p.m. and ordered twelve 16-ounce bottles of beer. Video observation did not show that he spilled or poured out or gave away any of his drinks. Around 10:20 p.m., Defendant disputed with a dealer that he had waived off the dealer. Security was called in. Defendant was shown the video and Defendant conceded that he was wrong that he had in fact waived off the dealer. At this time, several witnesses, including a trained law enforcement officer, observed Defendant to be being argumentative, slurring his speech, and appearing red in the face. The man was escorted out of the casino and told he would have to get a ride home or wait several more hours before being able to drive home. Then the man left the casino. Two witnesses observed him not long before he got into his car and drove away as having glassy and bloodshot eyes, slurring his speech, swaying where he stood, and had an odor of intoxicants. 

When he got into his car, he entered the passenger side to be driven by another person but soon switched seats with that person and was observed driving away.  The next day the police officer on duty called the Defendant and told him he would be charged with a DWI. The trial court found him guilty of a DWI.

The State, according to law, proves a “person commits the crime of ‘driving while intoxicated’ if he operates a motor vehicle while in an intoxicated or drugged condition.”

The State argued they had enough circumstantial evidence of what the witnesses observed and what was show on video of him consuming the drinks to prove intoxication. Case law defines circumstantial evidence as “evidence that does not directly prove a fact but gives rise to a logical inference that the fact [exists].”   

While there were no blood test results or field-sobriety test results presented to show that Defendant was intoxicated when he drove, the testimony of two employee witnesses and a police officer on duty that night at the casino that Defendant obtained 13 alcoholic beverages in the hours before driving home is sufficient to give rise to the logical inference that fact was true.

The second ground of the appeal was that the state’s use of the phrase “12 bottles of beer” and lining up 12 actual bottle of beers in front of the jury during its closing arguments was a prejudicial error because the phrase misrepresented evidence admitted at trial and that it is probable that it affected the jury’s verdict. The appellate court held it was not.

The judgment of the trial court that the Defendant was guilty of a DWI was affirmed. The appellate opinion was written by Judge Colleen Dolan, with Judges Robert G. Dowd, Jr., and Lisa P. Page concurring.