                               SECOND DIVISION
                                 MILLER, P. J.,
                             ANDREWS and SELF, 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


                                                                      March 7, 2018




In the Court of Appeals of Georgia
 A18A0800. SMITH v. THE STATE.

      ANDREWS, Judge.

      Following a stipulated bench trial based on proffered evidence, the State Court

of Fayette County found Gerren Smith guilty of driving under the influence of alcohol

to the extent he was less safe to drive, in violation of OCGA § 40-6-391 (a) (1). Smith

appeals his resulting conviction, arguing that the trial court erred in considering an

agreement he entered into during administrative license suspension (ALS)

proceedings. He also asserts that the State failed to prove venue. Although the trial

court properly considered the ALS evidence, we agree with Smith that the State

offered insufficient proof of venue. Accordingly, we reverse.

      Viewed favorably to the verdict, see Mock v. State, 306 Ga. App. 93, 94 (701

SE2d 567) (2010), the evidence shows that a Fayette County Sheriff’s Deputy
stopped Smith in the early morning hours of November 25, 2015, for a tag-light

violation. While speaking with Smith, the deputy detected a heavy odor of alcohol

coming from Smith’s vehicle, and he noticed that Smith had bloodshot, glassy eyes

and droopy eyelids. Smith’s speech was also slurred, and the deputy smelled alcohol

on his breath. The deputy asked Smith to take part in several field sobriety

evaluations, but Smith declined, insisting that he had not been drinking. Based on the

physical manifestations exhibited by Smith, the deputy determined that he was an

impaired driver, placed him under arrest, and read him the Georgia implied consent

warning. Smith subsequently refused to give a breath sample for the state-

administered breath test.

      1. Smith first argues that the trial court erred in considering evidence that,

during the ALS proceedings, he agreed with the arresting deputy to plead guilty to the

criminal DUI charge in exchange for dismissal of the deputy’s sworn report

supporting administrative suspension of his driver’s license. The agreement, which

was reflected in a consent “Motion to Dismiss Sworn Report” signed by Smith’s

attorney and the deputy, stated:

      The dismissal of the Sworn Report is based upon [Smith’s] agreement
      to enter a guilty plea to the underlying charge of violating OCGA § 40-


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      6-391 . . . . [Smith] further agrees that if [he] fails to enter the plea as
      agreed, [Smith] waives [his] right to further contest the suspension under
      OCGA § 40-5-67.1, and agrees to the entry of an order vacating the
      Consent Order and an order suspending or disqualifying [his] driver’s
      license, permit or privilege to operate a motor vehicle or commercial
      motor vehicle in this state.


      Based on the parties’ agreement, the judge presiding over the ALS proceeding

reversed the suspension of Smith’s license. Ultimately, however, Smith elected not

to plead guilty, and the criminal case proceeded. Prior to trial, the State sought

guidance on the admissibility of the ALS agreement, asserting that it amounted to an

admission by Smith. The trial court deemed the agreement admissible following a

hearing. We find no error.

      Smith does not claim on appeal that the ALS agreement was fraudulent or

signed without his authority. In fact, he conceded below that his attorney was

authorized to enter the agreement on his behalf. Instead, Smith argues that evidence

of the agreement should have been excluded because it did not contain language

establishing that it would be admissible at his criminal trial if he failed to plead

guilty.




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      In support, Smith cites us to Flading v. State, 327 Ga. App. 346 (759 SE2d 67)

(2014), a DUI case in which we approved admission of a similar agreement reached

between the defendant and the arresting officer prior to the ALS hearing. Like the

agreement here, the Flading document set forth the defendant’s agreement to plead

guilty in exchange for dismissal of the officer’s sworn report supporting

administrative license suspension. It also provided: “The parties agree that a copy of

this [agreement] may be admitted into any subsequent legal proceeding involving the

charge as an admission by [the defendant] of [the defendant’s] guilt or nolo

contendere in exchange for the rescission of the administrative license suspension.”

Flading, supra at 348.

      Noting that his agreement did not include the quoted language, Smith argues

that it should not have been considered at the bench trial. The Flading decision,

however, did not turn on this language. Rather, after determining that the defendant

had authorized his attorney to enter the stipulation, we found his election to “plead

guilty to DUI in exchange for the return of his driver’s license . . . relevant to, though

certainly not dispositive of, the charge that he was driving under the influence of

alcohol.” Flading, supra at 351 (2). We also concluded that any prejudice caused by

admission of the agreement did not outweigh its probative value. See id.

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      The same principles apply here. Smith does not dispute that he authorized his

attorney to enter the agreement, and he raises no claim of fraud or mistake. The

agreement is relevant to the underlying issue at trial – whether Smith drove under the

influence of alcohol to the extent he was less safe. See id.; OCGA § 24-4-401 (“[T]he

term ‘relevant evidence’ means evidence having any tendency to make the existence

of any fact that is of consequence to the determination of the action more probable

or less probable than it would be without the evidence.”). And nothing indicates that

potential prejudice caused by the agreement outweighs its probative value.

Accordingly, the trial court properly considered this evidence at the bench trial. See

Flading, supra; see also Adams v. State, 344 Ga. App. 159 (809 SE2d 87) (2017)

(following Flading in case involving ALS stipulation that did not include language

regarding future admissibility of agreement).

      2. We agree with Smith, however, that the State failed to present sufficient

proof establishing venue in Fayette County. In all criminal cases, the State must prove

venue beyond a reasonable doubt. See Tompkins v. State, 278 Ga. 857, 858 (1) (607

SE2d 891) (2005); see also OCGA § 17-2-2 (a) (“Criminal actions shall be tried in

the county where the crime was committed, except as otherwise provided by law.”).

Although a defendant may stipulate to venue, “the record must reflect that the

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defendant expressly authorized such stipulation and that the stipulation was intended

to obviate the need for direct proof.” See Tompkins, supra. This is true even where,

as here, the defendant agrees to a bench trial based on proffered evidence. See id. at

858 (2).

      We have not found – and the State has not cited – any evidence that Smith

stipulated to venue in Fayette County. Moreover, the State proffered no facts that

might otherwise support a venue finding. The evidence shows that Smith was stopped

on “Highway 138” while driving home from work at the Hyatt House Hotel. But

nothing links Highway 138 or the hotel to Fayette County. And although the arresting

deputy worked for the Fayette County Sheriff’s Department, his “county of

employment does not, in and of itself, constitute sufficient proof of venue to meet the

beyond a reasonable doubt standard.” Carter v. State, 320 Ga. App. 454, 457 (2) (740

SE2d 195) (2013) (citations omitted).

      Because the State failed to prove venue, we must reverse Smith’s conviction

for driving under the influence of alcohol. The State, however, “may retry him

without violating the Double Jeopardy Clause if there was otherwise sufficient

evidence at trial to support” his conviction. Mock, supra at 97 (1) (b) (punctuation

omitted). The evidence proffered here, including Smith’s physical manifestations

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during the traffic stop, his refusal to participate in field sobriety tests and the state-

administered breath test, and the agreement reached during the ALS proceeding,

authorized the trial court to conclude that Smith drove under the influence of alcohol

in violation of OCGA § 40-6-391 (a) (1). See Massa v. State, 287 Ga. App. 494, 495

(1) (651 SE2d 806) (2007) (“A defendant’s refusal to submit to field sobriety tests is

admissible as circumstantial evidence of intoxication and together with other

evidence would support an inference that he was an impaired driver.”); Alewine v.

State, 273 Ga. App. 629, 630 (1) (616 SE2d 472) (2005) (defendant’s erratic driving

and physical manifestations supported DUI conviction); Stephens v. State, 271 Ga.

App. 634, 635 (610 SE2d 613) (2005) (“[T]he refusal to submit to a blood alcohol test

created an inference that the test would reveal the presence of a prohibited substance

and bears directly on the issue of the sufficiency of the evidence.”). Retrial, therefore,

is permitted. See Mock, supra.

      Judgment reversed. Miller, P. J., and Self, J., concur.




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