Moss v. State

Birdsong, Judge. Victor Leroy Moss appeals from his convictions, following a bench trial, of driving under the influence and driving without insurance. Moss enumerates as error the entering of a conviction when the weight of the evidence did not support the guilty verdict, the denial of his motion for a directed verdict, and the application of OCGA § 40-6-391 to the evidence. The basis for all three enumerations of error is Moss’ contention that a conviction for driving under the influence must be based on evidence that the defendant actually operated his vehicle in an unsafe or less safe manner, and on other evidence showing that he was under the influence of alcohol when he did so. Held: The trial was not transcribed and, while a transcript of evidence from recollection pursuant to OCGA § 5-6-41 (g) may have been prepared, that transcript was not provided with the record submitted to this court. Further, Moss’ brief cannot be used to add evidence to the record (Leathers v. Timex Corp., 174 Ga. App. 430, 431 (330 SE2d 102); see Patterson v. State, 256 Ga. 740 (2) (353 SE2d 338)), and we cannot consider factual allegations in the brief that are not supported by the record. Behar v. Aero Med Intl., 185 Ga. App. 845 (366 SE2d 223). Accordingly, Moss has failed to satisfy his burden by showing error affirmatively in the record. Moye v. State, 127 Ga. App. 338, 341 (193 SE2d 562). Moreover, Moss’ arguments are incorrect as a matter of law. *182 OCGA § 40-6-391 (a) (1) makes it unlawful for a person to “drive or be in actual physical control of any moving vehicle while: Under the influence of alcohol to the extent that it is less safe for the person to drive. ...” There is no requirement that the person actually commit an unsafe act. See Williams v. State, 190 Ga. App. 361, 362 (378 SE2d 886); Campbell v. State, 189 Ga. App. 303 (375 SE2d 654); Boose v. State, 185 Ga. App. 728 (365 SE2d 534); Howell v. State, 179 Ga. App. 632, 634 (347 SE2d 358). Decided January 8, 1990. Randall G. Levine, for appellant. Spencer Lawton, Jr., District Attorney, Leonard Geldon, Assistant District Attorney, for appellee. Judgment affirmed. Deen, P. J., and McMurray, P. J., concur.