                               SECOND DIVISION
                                 MILLER, P. J.,
                              BROWN and GOSS, 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 8, 2019




In the Court of Appeals of Georgia
 A18A1634. ROBERTS v. THE STATE.

      BROWN, Judge.

      Jimmy Roberts was charged by accusation with driving under the influence

(DUI), less safe; driving on the wrong side of the road; and failure to maintain lane.

He appeals the trial court’s order granting the State’s motion to present evidence of

a prior DUI violation pursuant to OCGA § 24-4-417 (“Rule 417”). He contends that

the trial court erred by (1) concluding that the State provided sufficient notice of its

intent to offer evidence pursuant to Rule 417; (2) failing to apply the balancing test

in OCGA § 24-4-403 to the admission of the prior DUI; and (3) sua sponte reopening

the evidence during the similar transaction hearing to allow the State to present

additional evidence after closing arguments were made. Because this case involves

the admission of a suspect’s refusal to consent to a breath test in a DUI case, we
vacate the trial court’s order and remand the case to the trial court for further

consideration in light of the Supreme Court of Georgia’s recent decision in Elliott v.

State, ___ Ga. ___ (___ SE2d ___) (S18A1204, decided Feb. 18, 2019).

        The record reflects that Roberts was pulled over while driving on November

21, 2014, and failed a field sobriety test. After refusing to complete any further field

sobriety tests, Roberts was placed under arrest and read the implied consent notice.

He refused to take the state administered test, and, as noted previously, was charged

with DUI less safe; driving on the wrong side of the road; and failure to maintain

lane.

        On September 16, 2015, the State filed notice of its intent to offer into evidence

Roberts’ October 12, 2013 conviction of DUI less safe (the “prior DUI”) pursuant to

Rule 417. The notice provided that the prior DUI was similar to the facts of his 2014

DUI in that “a) both incidents involve the same offense [of] driving under the

influence; b) both incidents involve the same defendant (identity is therefore

established); [and] c) both incidents involve a refusal of a state administered test.”

The State attached a copy of the accusation as well as a certified copy of Roberts’

guilty plea to the offenses of DUI less safe and speeding and his sentencing sheet.



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      At a pre-trial hearing on the day Roberts’ trial was scheduled to begin, the trial

court concluded that the evidence was admissible, but issued a certificate of

immediate review. We granted Roberts’ application for interlocutory appeal, and this

appeal followed.

      After the trial court granted the State’s motion and after Roberts filed his notice

of appeal, the Supreme Court of Georgia decided Elliott, supra. Because the

circumstances of this case fall within the scope of the Supreme Court’s decision in

Elliott, we vacate and remand the case to the trial court for further consideration in

light of that decision. See Grimes v. State, 303 Ga. App. 808, 812 (1) (b) (695 SE2d

294) (2010).

      Judgment vacated and case remanded with direction. Miller, P. J., and Goss,

J., concur.




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