                             FIRST DIVISION
                              BARNES, P. J.,
                        MCMILLIAN and MERCIER, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                   October 18, 2017

In the Court of Appeals of Georgia
 A17A0651. MILLER v. THE STATE

      BARNES, Presiding Judge.

      Maggie Mae Miller appeals from the denial of her motion for new trial

following her jury conviction of driving under the influence of alcohol (DUI), less

safe, OCGA § 40-6-391 (a) (1), and following too closely, OCGA § 40-6-49 (a).

Upon our review, we affirm.

      On appeal from a criminal conviction, we view the evidence in the light most

favorable to the verdict. See Masood v. State, 313 Ga. App. 549, 550 (722 SE2d 149)

(2012). So viewed, the evidence demonstrates that on November 19, 2014, Miller ran

into the back of a vehicle that had stopped to turn at an intersection. When the

responding Georgia State Patrol trooper arrived at the scene of the accident, he

determined that, “[b]ased on Georgia law,” because Miller was driving the rear

vehicle, she was at fault for following too closely. When he spoke to Miller, the

trooper noticed “a strong odor” of alcohol and that her eyes were “blood-shot [and]
watery.” Miller initially denied consuming alcohol that day, but later told the trooper

that she had consumed two beers several hours earlier. Based on his observations, the

trooper initiated a DUI investigation and first conducted the horizontal gaze-

nystagmus (HGN) field sobriety test, during which Miller exhibited all six clues of

impairment. Miller said that she had hip issues, so the trooper determined that she

could not be medically cleared to perform the one-leg-stand or walk-and-turn

evaluations. Miller then submitted to an Alcosensor preliminary breath test, which

was positive for alcohol.

      The trooper placed Miller under arrest for DUI, read her the implied consent

warning for suspects 21 years of age of older, and asked her to submit to a state-

administered chemical test of her blood. Miller refused, and the trooper transported

her to the Hall County jail for booking. Miller was charged with DUI (less safe), and

following too closely. Following a jury trial, she was found guilty of both crimes and

sentenced to 12 months on the DUI conviction, with 14 days to serve, the remainder

on probation, and a consecutive 12 months of probation for the following to closely

conviction.

      Miller filed a motion for new trial, which she later amended, in which she

argued that the admission of a previous DUI conviction was unduly prejudicial and

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was introduced to prove an improper character trait, and that the trial court had not

properly balanced the probative value of admitting the violation against the

prejudicial effect of the prior conviction on the jury. Following a hearing, the trial

court denied the motion, and Miller now appeals from that order.1

      1. Miller argues that the trial court erred when it admitted her March 30, 2006

DUI conviction into evidence. She contends that, although the State’s intended

purpose for admitting the prior DUI conviction was to show “knowledge, plan, or

absence of mistake in refusing the state administered breath test,” the nearly eight-

year-old conviction could no longer serve that purpose because of its age. We

disagree.

      Before trial, the State filed notice of its intent to introduce evidence of Miller’s

March 30, 2006 DUI conviction pursuant to OCGA § 24-4-417 (“Rule 417”).2 The


      1
         It is unclear whether the motion for new trial hearing was transcribed, but
there is no hearing transcript included with the appellate record.
      2
       OCGA § 24-4-417 (a) provides in relevant part that
      evidence of the commission of another [DUI] violation . . . on a different
      occasion by the same accused shall be admissible when. . . [t]he 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. . . . (Emphasis

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evidence regarding the 2006 conviction demonstrated that an officer attempted to stop

Miller’s vehicle because it was reportedly involved in a hit-and-run accident. As he

attempted to stop Miller’s vehicle, the officer observed Miller’s vehicle weaving, and,

although he activated his lights and siren, Miller continued to drive for more than one

mile. She was finally stopped by officers who were working an unrelated accident

scene. Miller refused to get out of her vehicle, and was ultimately physically

removed. She appeared confused and disoriented, and the officer noticed the smell

of alcohol “coming from the vehicle.” Miller had trouble standing unassisted, so the

officer could not perform field sobriety tests, but she agreed to take the state-

administered breath test. Miller was arrested on the scene for other charges, including

leaving the scene of an accident, and transported to jail where she was administered

the breath test, and based on the result of .267 grams, Miller was also charged with

DUI.

       Following a pretrial similar transaction hearing, the trial court ruled that, in

construing Rule 417, the 2006 DUI conviction was admissible, because, per State v.

Frost, 297 Ga. 296, 305 (773 SE2d 700) (2015), proof of a prior DUI




       supplied.)

                                           4
      may strengthen substantially the inference about the presence of an
      intoxicant. This is so because . . . it might be inferred from evidence of
      prior occasions in which the accused had driven under the influence that
      the accused had an awareness that his ingestion of an intoxicant
      impaired his ability to drive safely. Such awareness in turn would offer
      the explanation for why the accused refused the test on this occasion[,]
      nam[ely] that he was conscious of his guilt and knew that the test would
      likely tend to show he was in fact under the influence of a prohibited
      substance to an extent forbidden by the DUI statute.


The trial court further found that, although it had concerns about the probative value

of the ten-year-old DUI conviction, “under [Rule 417] I’m not weighing the

prejudicial value versus the probative value. I’m not finding that.. . . I just don’t feel

from what I have read in Frost and the clear wording of the statute that I can make

that determination”



      In his motion for new trial, Miller asserted, among other things, that under Rule

417, the trial court was required to utilize the balancing test in OCGA § 24-4-403

(“Rule 403”) to weigh the probative value of admitting prior DUI violations against

the prejudicial impact of the evidence, and the trial court had erred in not doing so.

In its order denying Miller’s motion for new trial, the trial court agreed with Miller


                                            5
that Rule 417 should be construed with the Rule 403 balancing test to require that the

probative value of Miller’s prior DUI arrest be substantially outweighed by its

prejudicial impact, and that it was error not to do so. But the court found that Miller

was not harmed by its failure to consider the balancing test before admitting the prior

DUI conviction because, in balancing the probative value and prejudicial impact, the

2006 DUI was relevant to both knowledge and absence of mistake, the jury had been

properly instructed on the proper use of the prior DUI evidence and it was unlikely

that they had failed to follow these instructions, and the exclusion of evidence under

Rule 403 is an extraordinary remedy “and the balance should be struck in favor of

admissibility.”

      Miller contends on appeal that the eight year span between the two DUI

convictions lessons the probative value of the prior DUI and increases its prejudicial

impact, and that because of its age, the prior conviction could “no longer” serve the

State’s purpose of knowledge and absence of mistake. We do not agree.

      Evidence of a prior DUI charge “shall be admissible” in a DUI prosecution

where the defendant refused to take a state-administered chemical test to show

“knowledge, plan, or absence of mistake or accident.” OCGA § 24-4-417 (a) (1). See

Frost, 297 Ga. at 301. And, while “neither this Court nor the Supreme Court has

                                          6
conclusively held that Rule 403 applies to Rule 417,”Gibbs v. State, 341 Ga. App.

316, 319 (2) (800 SE2d 385) (2017), we will presume without deciding that Rule 403

applies to Rule 417. See Kim v. State, 337 Ga. App. 155, 157 (786 SE2d 532) (2016)

(defendant argued that evidence of his prior DUI conviction admitted under Rule 417

was more prejudicial than probative under Rule 403, and this Court presumed without

deciding that Rule 403 applied to evidence admissible under Rule 417).

      Rule 403 provide that “[r]elevant evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury or by considerations of undue delay, waste of time, or

needless presentation of cumulative evidence.” OCGA § 24-4-403. Despite Miller’s

contention, the lapse of time does not presumptively lessen the probative value of a

prior act, but instead “is a factor to be taken into consideration when balancing the

probative value of the evidence against its potentially prejudicial impact.” (Citation

and punctuation omitted.) Buckholts v. State, 283 Ga. App. 254, 257-258 (2) (641

SE2d 246) (2007) (17-year lapse of time between offenses does not automatically

render evidence of the prior offense inadmissible). See Evans v. State, 287 Ga. App.

74, 76 (2) (651 SE2d 363) (2007) (evidence admissible despite 16-year gap between

Evans’ prior DUI arrest and his current DUI offense). To that end, “[a] trial court has

                                          7
considerable discretion in determining whether the potential for prejudice

substantially outweighs any probative value.” (Citation and punctuation omitted.)

Gibbs, 341 Ga. App. at 319 (2).

      Here, the trial court admitted the 2006 DUI for proper purposes pursuant to

Rule 417, including that such evidence tended to show Miller’s knowledge of the

effects of alcohol consumption on her driving and knowledge about the use of testing

to determine impairment, and the trial court was authorized to find that its probative

value was not substantially outweighed by its prejudicial impact, despite the age of

the prior DUI conviction.3

      2. Miller’s assertion that the trial court should have limited the testimony about

the 2006 DUI to certain facts, rather than allowing testimony about the entire

incident, is maintained for the first time on appeal. Her assertion




      3
        While not specifically ruling on the impact of the gap of time between the
DUI convictions, during the Rule 417 hearing, the trial court expressed concern about
the length of time between the two DUI convictions, and with nothing in the record
affirmatively to the contrary, we will presume that the trial court considered the age
of the prior DUI in weighing its probative value against the prejudicial impact. See
Murdock v. State, 299 Ga. 177, 178 (2) (787 SE2d 184) (2016) (“Unless the record
shows otherwise, we must presume that the trial court understood the nature of its
discretion and exercised it.”)

                                          8
      differs from the objections raised in the trial court and, therefore, it will
      not be considered for the first time on appeal. See Kitchens v. State, 228
      Ga. 624 (187 SE2d 268) (1972) ([Appellate courts are] court[s] for the
      correction of errors made by the trial court and . . . cannot decide
      questions raised for the first time on appeal); Jackson v. State, 252 Ga.
      App. 16, 17 (2) (555 SE2d 240) (2001) (“one may not abandon an issue
      in the trial court and on appeal raise questions or issues neither raised
      nor ruled on by the trial court”).


Turner v. State, 299 Ga. 720, 722 (4) (791 SE2d 791) (2016).

Judgment affirmed. McMillian and Mercier, JJ., concur.




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