¶1NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
¶2In the Supreme Court of Georgia
¶3 Decided: March 4, 2025
¶4 S24A1112. LA ANYANE v. THE STATE.
¶5 PINSON, Justice.
¶6 Evelyn-Natasha La Anyane was convicted of driving under the
¶7influence (DUI) of alcohol less safe and other traffic offenses. During
¶8the traffic stop that led to her arrest, La Anyane was read the stat-
¶9utory implied-consent warning about submitting to a test of her
¶10blood or other bodily substance for alcohol. She consented to a blood
¶11test, and the results were used against her at trial.
¶12 On appeal, La Anyane argues that Georgia’s entire implied-
¶13consent statutory scheme is unconstitutional on its face and as ap-
¶14plied to her. She contends that the implied-consent warning uncon-
¶15stitutionally coerces drivers to consent to a blood test by telling
¶16them, falsely, that their consent is required, and that their refusal
¶17can be offered against them at trial. She contends that because any consent obtained through the implied-consent warning is not free
¶18and voluntary, the implied-consent statutory scheme unconstitu-
¶19tionally authorizes law enforcement officers to take drivers’ blood
¶20without a search warrant, valid consent, or any other exception to
¶21the warrant requirement. And she contends that the trial court
¶22made two evidentiary errors by (1) refusing to let her cross-examine
¶23an expert with a study about field sobriety tests and (2) allowing
¶24evidence about her blood alcohol content even though she was
¶25charged with DUI less safe and not DUI per se.
¶26 These claims fail. The implied-consent warning was not uncon-
¶27stitutionally coercive as applied to La Anyane here: it did not tell
¶28her that her consent was “required,” as she contends, and its state-
¶29ment that a driver’s refusal to consent to a blood test can be used
¶30against her at trial has never been held unconstitutional or other-
¶31wise “false.” And La Anyane otherwise consented freely and volun-
¶32tarily to a test of her blood, so that search was authorized under the
¶33Fourth Amendment. Because La Anyane’s as-applied challenge to
¶34the implied-consent statutory scheme fails, she lacks standing to
¶35 2 bring her facial challenge on the basis that scheme authorizes war-
¶36rantless searches as a general matter. Finally, the trial court did not
¶37abuse its discretion in determining that La Anyane did not lay a
¶38proper foundation for the field study, or in determining that her
¶39blood alcohol content was relevant and not unfairly prejudicial in a
¶40prosecution for DUI less safe.
¶41 1. Background
¶42 (a) Implied-Consent Statutory Scheme
¶43 As in every state, driving under the influence of alcohol is a
¶44crime in Georgia. See OCGA § 40-6-391 (a) (1) & (5). To help enforce
¶45that prohibition, several of our statutes authorize police officers to
¶46request to test DUI suspects for the presence of intoxicants and al-
¶47low the results of those tests to be admitted as evidence at trial.
¶48These statutes, which are often referred to generally as the implied-
¶49consent statutory scheme, are what La Anyane challenges in this
¶50appeal.
¶51 The implied-consent statutory scheme declares that any driver
¶52on Georgia roads “shall be deemed to have given consent . . . to a
¶53 3 chemical test or tests of his or her blood, breath, urine, or other bod-
¶54ily substances for the purpose of determining the presence of alcohol
¶55or any other drug,” if the driver is arrested for DUI. OCGA § 40-5-
¶5655 (a). These tests are administered “at the request of a law enforce-
¶57ment officer having reasonable grounds to believe” that the driver is
¶58under the influence. Id. The requesting officer is directed to “desig-
¶59nate which of the test or tests” — of blood, breath, urine, or other
¶60bodily substances — is administered, except that a blood test is re-
¶61quired if the driver has been involved in an accident resulting in
¶62serious injuries or fatalities. Id. The results of any tests are admis-
¶63sible against the driver at trial, see OCGA § 40-6-392 (a), and —
¶64subject to constitutional exceptions discussed further below — the
¶65defendant’s refusal to consent to testing of her “blood, breath, urine,
¶66or other bodily substance” is also admissible against her, OCGA
¶67§ 40-6-392 (d).
¶68 Along with these substantive provisions, the implied-consent
¶69statutory scheme prescribes a verbal warning for law enforcement
¶70officers to read to drivers whom they suspect of driving under the
¶71 4 influence. See OCGA § 40-5-67.1 (b) (2). That implied-consent warn-
¶72ing essentially tells motorists about the substantive provisions dis-
¶73cussed above. It explains that a driver’s privilege of getting a Geor-
¶74gia driver’s license is “conditioned” on her “submitting” to “state ad-
¶75ministered chemical tests” of her blood or other bodily substances to
¶76determine if she is under the influence of alcohol or drugs. The warn-
¶77ing further explains that, if the driver refuses to submit to a chemi-
¶78cal test, her driver’s license will be suspended for at least a year and
¶79her refusal “may be offered into evidence against [her] at trial.”
¶80OCGA § 40-5-67.1 (b) (2). 1
¶81 1 The implied-consent warning reads in full:
¶82 The State of Georgia has conditioned your privilege to drive upon the highways of this state upon your submission to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to blood or urine testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.08 grams or more, your Georgia driver’s license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the requested state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily
¶83 5 (b) This Case
¶84 Police stopped La Anyane for, among other things, failing to
¶85maintain her lane and not using her high-beams properly. During
¶86the traffic stop, officers noticed that her eyes looked “red” and
¶87“glassy,” her breath smelled of alcohol, her speech was slurred, and
¶88her shirt was stained with what appeared to be red wine. La Anyane
¶89stated that she had had one drink.
¶90 Officers began investigating whether La Anyane was driving
¶91under the influence of alcohol or another drug. They had her perform
¶92several field-sobriety exercises, including horizontal-gaze nystag-
¶93mus, walk and turn, and one-leg stand. La Anyane failed the exer-
¶94cises. Police then administered a preliminary breath test, which La
¶95Anyane also failed. At that point, the officers placed La Anyane un-
¶96der arrest.
¶97 substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your (designate which test)?
¶98 OCGA § 40-5-67.1 (b) (2). 6 Once La Anyane was under arrest, officers read her the statu-
¶99tory implied-consent warning. La Anyane consented to have her
¶100blood drawn and tested. During the test, she asked, “What is this
¶101for,” and an officer responded that it was “part of [her] DUI process.”
¶102Apart from that question, La Anyane did not say or do anything to
¶103suggest she had changed her mind about submitting to the blood test
¶104or that she was doing so against her will.
¶105 The blood test revealed a blood alcohol content of 0.117 grams
¶106per 100 milliliters, which is above the legal limit of 0.08. See OCGA
¶107§ 40-6-391 (a) (5). La Anyane was charged with failure to maintain
¶108lane, failure to dim lights, and DUI less safe, all misdemeanors. She
¶109pleaded not guilty.
¶110 Before trial, La Anyane moved to suppress the results of the
¶111chemical blood test. She argued, among other things, that the im-
¶112plied-consent warning is “inherently coercive, inaccurate, [and] mis-
¶113leading” because it falsely implies that motorists are required to sub-
¶114mit to testing, and because it “incorrectly state[s] that the refusal
¶115[to submit] will be admissible at trial against Defendant contrary to
¶116 7 constitutional guarantees (both state and federal).” La Anyane ar-
¶117gued that this meant her consent to the blood test was not truly vol-
¶118untary.
¶119 The trial court denied the motion to suppress and admitted the
¶120results of La Anyane’s blood test. At trial, the jury found La Anyane
¶121guilty of all counts.
¶122 2. Analysis
¶123 Although La Anyane makes constitutional arguments under
¶124multiple headings in her brief, we understand those arguments to
¶125work together as follows. La Anyane contends that Georgia’s im-
¶126plied-consent statutory scheme violates the Fourth Amendment to
¶127the United States Constitution because it authorizes police officers
¶128to take the blood of a DUI suspect without a search warrant or a
¶129valid exception to the warrant requirement.2 And although that
¶130 2 La Anyane’s argument that her blood draw was unconstitutional fo-
¶131cuses only on the Fourth Amendment to the United States Constitution and decisions interpreting and applying it. Although she cites the Georgia Constitution’s similar provision, Ga. Const. of 1983, Art. I, Sec. I, Par. XIII, she makes no separate argument under that provision, so we address her argument only under the Fourth Amendment. See Smallwood v. State, 310 Ga. 445, 447 (2)
¶132 8 scheme instead contemplates such blood draws to be authorized by
¶133the driver’s consent — which makes a Fourth Amendment search
¶134valid — she contends that the implied-consent warning given to
¶135drivers is “unconstitutionally coercive,” so a driver who agrees to a
¶136blood test has not given free and voluntary consent. As a result, La
¶137Anyane contends, her blood was drawn and tested — a Fourth
¶138Amendment search — without authorization that satisfies the
¶139Fourth Amendment. In short, her argument turns on whether she
¶140gave free and voluntary consent to the blood test. If so, the police
¶141conducted a valid search, and her constitutional challenge to the
¶142statute fails. So we start with La Anyane’s contentions about con-
¶143sent and then address her remaining arguments.
¶144 (a) Under the Fourth Amendment, a search “authorized by con-
¶145sent” is “wholly valid” as long as consent is freely and voluntarily
¶146given. Schneckloth v. Bustamonte, 412 U.S. 218, 222 (II) (93 SCt
¶147n.2 (851 SE2d 595) (2020) (declining to analyze a due process claim under the Georgia Constitution where the defendant “cite[d] in passing” the due process clause of the Georgia Constitution but made no separate argument and cited no cases in support of the state constitutional claim). 9 2041, 36 LE2d 854) (1973). See also Brooks v. State, 285 Ga. 424,
¶148425 (677 SE2d 68) (2009) (“a valid consent to a search eliminates the
¶149need for either probable cause or a search warrant”). And we ordi-
¶150narily determine whether consent was free and voluntary by as-
¶151sessing the totality of the circumstances. See id. La Anyane does not
¶152dispute that she gave the police her consent to have her blood drawn
¶153and tested. But she points to one circumstance that she says made
¶154her consent not truly voluntary: the implied-consent warning the
¶155police read to her before giving her consent was, in her view, “un-
¶156constitutionally coercive.” She focuses on two aspects of the implied-
¶157consent warning: the statement that Georgia “has conditioned your
¶158privilege to drive upon the highways of this state upon your submis-
¶159sion to state administered chemical tests,” and the warning that
¶160“[y]our refusal to submit to blood or urine testing may be offered into
¶161evidence against you at trial.” In La Anyane’s view, these state-
¶162ments mislead drivers about their constitutional right not to agree
¶163to chemical testing.
¶164 La Anyane’s claim fails at its premises, because neither of the
¶165 10 two parts of the implied-consent warning that she objects to are co-
¶166ercive for the reasons she gives.
¶167 (i) The implied-consent warning does not tell drivers that they
¶168are “required” to submit to a blood test, as La Anyane contends. In-
¶169deed, we have already rejected that exact argument. In Olevik v.
¶170State, 302 Ga. 228 (806 SE2d 505) (2017), we concluded that the im-
¶171plied-consent warning clearly tells drivers that they can choose not
¶172to consent to chemical testing. See id. at 249 (3) (a). As we explained
¶173in Olevik, the implied-consent warning does that by putting before
¶174the driver at least three times the possibility of refusal. The implied-
¶175consent warning states: “If you refuse this testing, your Georgia
¶176driver’s license or privilege to drive . . . will be suspended.” It then
¶177warns: “Your refusal to submit to . . . testing may be offered into
¶178evidence against you at trial.” And it ends by squarely presenting
¶179the choice: “Will you submit to the state administered chemical
¶180tests?” See id. (citing OCGA § 40-5-67.1 (b) (2)). We explained in
¶181Olevik how those phrases inform drivers that they can refuse a
¶182chemical test: “Because the notice refers to a right to refuse, advises
¶183 11 suspects of the consequences for doing so, and concludes with a re-
¶184quest to submit to testing, a reasonable suspect relying solely on the
¶185notice should understand that the State is asking for a suspect’s co-
¶186operation, rather than demanding it, and that they have a right to
¶187refuse to cooperate.” Id.3
¶188 In addition to including this language about the driver’s right
¶189to refuse a chemical test, the implied-consent warning notably omits
¶190any reference to a criminal penalty for refusing. That is because
¶191there is none: drivers may incur civil penalties, as the implied-con-
¶192sent warning warns, but they will not be charged with a separate
¶193offense if they do not consent to testing. Compare Birchfield v. North
¶194Dakota, 579 U.S. 438, 450-451 (II) (A) & 477 (VI) (136 SCt 2160, 195
¶195LE2d 560) (2016) (where a statute made it a misdemeanor to refuse
¶196 3 The implied-consent warning was amended after Olevik, and the ver-
¶197sion that was read to La Anyane was slightly different than the one we considered in that case. Where the implied-consent warning in Olevik warned that “[y]our refusal to submit to the required testing may be offered into evidence against you at trial,” see Olevik, 302 Ga. at 249 (3) (a) (emphasis added), the version read to La Anyane said that “[y]our refusal to submit to blood or urine testing may be offered into evidence against you at trial,” OCGA § 40-5-67.1 (2) (b) (emphasis added). That change does not affect our conclusion that the implied-consent warning is clear that drivers have the option to refuse testing. 12 to submit to a blood test, and drivers in DUI investigations were told
¶198of the criminal consequence if they refused to submit, the drivers
¶199“[could not] be deemed to have consented to submit to a blood test
¶200on pain of committing a criminal offense”). All of this means that a
¶201reasonable driver being read the implied-consent warning would un-
¶202derstand that she can refuse to consent to a chemical test without
¶203being charged with a crime — and she would be right. So the im-
¶204plied-consent warning does not tell drivers that their consent is
¶205mandatory, as La Anyane contends.
¶206 La Anyane also seems to contend that the very notion of im-
¶207plied consent is improper — that the State cannot “condition[ ] your
¶208privilege to drive” on your submission to a chemical test. But again,
¶209the warning itself is clear that the driver can refuse consent. So to
¶210the extent “implied consent” is built into the statute, it is not abso-
¶211lute or irrevocable. The driver retains the right to refuse a chemical
¶212test without being charged with another crime. And although such
¶213a refusal may have civil consequences, neither we nor the United
¶214 13 States Supreme Court have held that such consequences are uncon-
¶215stitutional. Cf. Birchfield, 579 U.S. at 476-477 (VI) (“Our prior opin-
¶216ions have referred approvingly to the general concept of implied-con-
¶217sent laws that impose civil penalties and evidentiary consequences
¶218on motorists who refuse to comply.”). This basis for La Anyane’s ar-
¶219gument that the implied-consent statutory scheme is unconstitu-
¶220tionally coercive therefore fails.
¶221 (ii) La Anyane’s second contention about the implied-consent
¶222warning — that it is unconstitutionally coercive because it tells driv-
¶223ers, falsely, that their refusal to consent to a blood test can be used
¶224against them — also fails under the circumstances here.
¶225 La Anyane is correct that the implied-consent warning tells
¶226drivers that their refusal to consent to a blood test may be used
¶227against them at trial. But she has not shown that that statement is
¶228“false” as she claims. The warning is consistent with Georgia statu-
¶229tory law, which provides that the State can introduce into evidence
¶230at trial a driver’s refusal to submit to a test of her “blood, breath,
¶231 14 urine, or other bodily substance,” see OCGA § 40-6-392 (d), and nei-
¶232ther we nor the United States Supreme Court have ever held that
¶233that statute is unconstitutional. It is true that we held in Elliott v.
¶234State, 305 Ga. 179 (824 SE2d 265) (2019), that OCGA § 40-6-392 (d)
¶235is unconstitutional as applied to breath tests, because under the
¶236Georgia Constitution, providing deep lung air for a breath test is a
¶237self-incriminatory act, and a person’s exercise of her right not to in-
¶238criminate herself cannot be used against her. See Ga. Const. of 1983,
¶239Art. I, Sec. I, Par. XVI; Elliott, 305 Ga. at 209 (IV). But we have
¶240never held that drawing someone’s blood implicates the right
¶241against compelled self-incrimination under the Georgia Constitu-
¶242tion, and the United States Supreme Court has rejected the argu-
¶243ment that the federal right against compelled self-incrimination is
¶244implicated by a blood draw. See Olevik, 302 Ga. at 232 (2) (a) n.2
¶245(noting that in Strong v. State, 231 Ga. 514 (202 SE2d 428) (1973),
¶246“we concluded that extracting blood did not cause the defendant to
¶247be a witness against himself under the Fifth Amendment and ‘simi-
¶248lar provisions of Georgia law,’ approvingly citing cases to the effect
¶249 15 that the removal of evidence from a defendant’s body does not impli-
¶250cate his right against compelled self-incrimination,” and that
¶251“[n]othing we say here should be understood as casting any doubt on
¶252Strong’s self-incrimination holding”). See also Schmerber v. Califor-
¶253nia, 384 U.S. 757, 764-765 (II) (86 SCt 1826, 16 LE2d 908) (1966)
¶254(explaining that a suspect who submits to a blood test is not provid-
¶255ing testimony or performing an incriminatory act but is instead be-
¶256coming “the source of ‘real or physical evidence’”). Nor have we oth-
¶257erwise held that evidence of a driver’s refusal to consent to having
¶258her blood drawn for testing cannot be used against her. See State v.
¶259Randall, 318 Ga. 79, 81 (2) (897 SE2d 444) (2024) (describing that
¶260question as “thorny and unresolved”). And that question is not be-
¶261fore us in this case: La Anyane does not contend that refusal evi-
¶262dence may not be used against her, nor could she, because she did
¶263not refuse to have her blood drawn, so no such evidence of refusal
¶264exists in this case. 4
¶265 4 Separate from these constitutional considerations, a trial court might
¶266exclude a driver’s refusal to submit to a blood test under the ordinary rules of
¶267 16 All of that is to say that the police officer who read La Anyane
¶268the implied-consent warning did not give her a “false[]” warning, at
¶269least about the consequences of refusing a blood test. In other words,
¶270La Anyane’s claim fails at its premise: because she has not estab-
¶271lished that the implied-consent warning was “false,” her claim that
¶272it is unconstitutionally coercive on that basis fails. 5 And she has of-
¶273fered no other reason to conclude that her consent was not given
¶274freely and voluntarily under the totality of the circumstances. See
¶275Brooks, 285 Ga. at 425-426.
¶276 (b) In light of our conclusion that La Anyane failed to establish
¶277that the implied-consent warning is unconstitutionally coercive, her
¶278Fourth Amendment claims cannot succeed.
¶279 Start with her as-applied challenge. La Anyane contends that
¶280evidence — for instance, if its probative value were substantially outweighed by the danger of unfair prejudice. See OCGA § 24-4-403. But the fact that such evidence could be excluded on a case-by-case basis does not make the implied-consent warning categorically “false” or unduly coercive. 5 La Anyane also briefly contends the implied-consent warning is unduly
¶281coercive because it tells drivers their driver’s licenses may be suspended for a year if they refuse a blood test. That is a correct statement of Georgia law, and La Anyane offers no support for the argument that such a civil penalty is unconstitutional, nor are we aware of any. So her claim about the implied-consent warning fails on that basis as well. 17 the police drew her blood without a search warrant or a valid excep-
¶282tion to the warrant requirement. But as explained above, a search
¶283“authorized by consent” is “wholly valid” as long as consent is freely
¶284and voluntarily given. See Schneckloth, 412 U.S. at 222 (II); Brooks,
¶285285 Ga. at 425. And the record here shows that La Anyane gave the
¶286police express consent to draw her blood, and she has not established
¶287that her consent was coerced by the implied-consent warning or oth-
¶288erwise. Because La Anyane gave free and voluntary consent, the
¶289draw of her blood was a valid search under the Fourth Amendment.
¶290 Because La Anyane’s as-applied challenge fails, she lacks
¶291standing to advance her broader argument that the law is unconsti-
¶292tutional on its face. That argument, as best we can tell, is that the
¶293implied-consent statutory scheme violates the Fourth Amendment
¶294rights of any and all drivers who are subjected to a blood draw be-
¶295cause it authorizes that search without a warrant or the presence of
¶296any exception to the warrant requirement. But a litigant who has
¶297not established a violation of her own constitutional rights “cannot
¶298challenge a law on the ground that it might conceivably be applied
¶299 18 unconstitutionally to others.” Georgia Dep’t of Human Servs. v. Stei-
¶300ner, 303 Ga. 890, 899 (III) (815 SE2d 883) (2018) (citation and punc-
¶301tuation omitted). Accord County Ct. of Ulster County v. Allen, 442
¶302U.S. 140, 155 (II) (99 SCt 2213, 60 LE2d 777) (1979) (“As a general
¶303rule, if there is no constitutional defect in the application of the stat-
¶304ute to a litigant, he does not have standing to argue that it would be
¶305unconstitutional if applied to third parties in hypothetical situa-
¶306tions.”). So La Anyane’s facial challenge fails, too.
¶307 3. La Anyane also contends that the trial court made two evi-
¶308dentiary errors at her trial. We review a trial court’s evidentiary rul-
¶309ings for abuse of discretion. See Smith v. State, 318 Ga. 868, 873 (3)
¶310(901 SE2d 158) (2024).
¶311 (a) La Anyane contends that the trial court abused its discre-
¶312tion by refusing to allow her to cross-examine a State expert witness
¶313using a 1977 study of field sobriety tests. The witness was a police
¶314officer who had been qualified as an expert on DUI investigations.
¶315La Anyane tried to impeach the expert’s credibility by asking about
¶316 19 the study. The trial court allowed some questions, but when La An-
¶317yane tried to introduce into evidence a document that she said was
¶318the study itself, and to read from it during questioning, the court
¶319sustained the State’s objection that La Anyane had not laid a proper
¶320foundation. La Anyane argued that she did not need to lay a foun-
¶321dation for impeachment evidence, but the court rejected that argu-
¶322ment. La Anyane then tried to lay a foundation by asking the expert
¶323about the study, but the expert testified that, although she was gen-
¶324erally familiar with the study, she did not recognize the document
¶325La Anyane was holding or know what was in it.
¶326 La Anyane’s claim fails because she did not establish that the
¶327document she claimed was the 1977 study was admissible. The doc-
¶328ument met the statutory definition of hearsay: It was “a statement,
¶329other than one made by the declarant while testifying at the trial or
¶330hearing, offered in evidence to prove the truth of the matter as-
¶331serted,” OCGA § 24-8-801 (c). Because it was hearsay, the document
¶332was not admissible unless it fell under a statutory exception to the
¶333general rule excluding hearsay evidence. See OCGA § 24-8-802. And
¶334 20 here, the only exception that might apply is the one for “learned
¶335treatises” under OCGA § 24-8-803 (18), which provides that state-
¶336ments in “published treatises, periodicals, or pamphlets . . . on a
¶337subject of history, medicine, or other science or art” are admissible
¶338if they are called to the attention of an expert witness during cross-
¶339examination and are “established as a reliable authority by the tes-
¶340timony or admission of the witness, by other expert testimony, or by
¶341judicial notice.” OCGA § 24-8-803 (18). But La Anyane did not show
¶342that the document she had in court was a “reliable authority.” The
¶343expert she was cross-examining testified that she did not recognize
¶344the document, and La Anyane did not establish its reliability either
¶345through “other expert testimony” or by judicial notice. The trial
¶346court was therefore within its discretion to determine that La An-
¶347yane had not laid a foundation to admit the document under the
¶348hearsay exception of OCGA § 24-8-803 (18).
¶349 La Anyane contends that the document was nevertheless ad-
¶350missible simply because it was impeachment evidence. In support of
¶351that contention, she cites one Court of Appeals case in her reply
¶352 21 brief, Morris v. State Farm Mutual Automobile Insurance Company,
¶353203 Ga. App. 839 (418 SE2d 119) (1992), which noted that “evidence
¶354tendered for purposes of impeachment need not be of the kind or
¶355quality required for proving the facts in issue.” Id. at 842 (9). But
¶356that language from Morris was about the weight or materiality of
¶357evidence, not its admissibility. See id. (“We are satisfied that appel-
¶358lant was not impeached as to wholly immaterial matters, but was
¶359attempted to be impeached as to matters at least indirectly if not
¶360directly material as to appellant’s testimony and to issues in this
¶361case.”). Neither Morris nor any other authority we are aware of sup-
¶362ports La Anyane’s contention that inadmissible evidence may be ad-
¶363mitted if its purpose is for impeachment. Her claim that it was error
¶364to not admit the 1977 study therefore fails.
¶365 (b) La Anyane also contends that the trial court abused its dis-
¶366cretion by allowing the State to introduce evidence about her blood
¶367alcohol content. She contends that that evidence was not relevant
¶368and prejudicial given the specific offense with which she was
¶369charged.
¶370 22 The Georgia Code recognizes two types of DUI offenses: driving
¶371“[u]nder the influence of alcohol to the extent that it is less safe for
¶372the person to drive,” OCGA § 40-6-391 (a) (1), commonly known as
¶373DUI less safe; and driving when “[t]he person’s alcohol concentration
¶374is 0.08 grams or more at any time within three hours after . . . driv-
¶375ing or being in actual physical control [of any moving vehicle] from
¶376alcohol consumed before such driving or being in actual physical con-
¶377trol ended,” OCGA § 40-6-391 (a) (5), which is known as DUI per se.
¶378La Anyane was charged with DUI less safe, so the State had to prove
¶379that she was “under the influence of alcohol to the extent that it
¶380[was] less safe for [her] to drive,” but it did not have to prove any-
¶381thing specific about her blood alcohol content. In La Anyane’s view,
¶382that means that any evidence of her blood alcohol content was not
¶383relevant and prejudicial and was therefore not admissible. She ob-
¶384jected to the blood alcohol content evidence on these grounds at trial,
¶385but the trial court overruled her objection.
¶386 This claim fails. First, La Anyane’s blood alcohol content was
¶387relevant to the charge of DUI less safe. Evidence is relevant if it has
¶388 23 “any tendency to make the existence of any fact that is of conse-
¶389quence to the determination of the action more probable or less prob-
¶390able than it would be without the evidence.” OCGA § 24-4-401. In a
¶391prosecution for DUI less safe, one element of the charged offense is
¶392that the defendant was “under the influence of alcohol.” See OCGA
¶393§ 40-6-391 (a) (1); State v. Jones, 297 Ga. 156, 160 (2) (773 SE2d 170)
¶394(2015). It should go without saying that a chemical blood test show-
¶395ing that La Anyane had alcohol in her bloodstream while driving
¶396does make it more probable that she was driving under the influence
¶397of alcohol.
¶398 La Anyane points out that the State introduced evidence show-
¶399ing not only that she had alcohol in her bloodstream, but also that
¶400her blood alcohol content was above the legal limit. She contends
¶401that that evidence about her blood alcohol content was unfairly prej-
¶402udicial — especially since the prosecutor emphasized it in his closing
¶403argument — and that it should have been excluded under OCGA
¶404§ 24-4-403 (Rule 403) (“Relevant evidence may be excluded if its pro-
¶405bative value is substantially outweighed by the danger of unfair
¶406 24 prejudice, confusion of the issues, or misleading the jury or by con-
¶407siderations of undue delay, waste of time, or needless presentation
¶408of cumulative evidence.”). But the exclusion of evidence under Rule
¶409403 is an “extraordinary remedy,” Mills v. State, 320 Ga. 457, 464
¶410(3) (b) (910 SE2d 143) (2024) (citation and punctuation omitted),
¶411which should be used “only when unfair prejudice substantially out-
¶412weighs probative value,” Wyatt v. State, 319 Ga. 658, 663 (906 SE2d
¶413380) (2024) (emphasis in original) (citation and punctuation omit-
¶414ted). Here, even if it was not strictly necessary for the State to show
¶415that La Anyane’s blood alcohol content was above the legal limit, it
¶416was not unfairly prejudicial for it to do so. The fact that La Anyane
¶417had enough alcohol in her system to exceed the limit set by the Gen-
¶418eral Assembly made it more likely that she was “under the influ-
¶419ence” of alcohol, and it was not unfair for the State to present the
¶420two numbers side by side — the legal limit of 0.08 and La Anyane’s
¶421blood alcohol content of 0.117 — to give the jury context about the
¶422amount of alcohol in her bloodstream. The trial court was thus
¶423within its discretion to admit this evidence, and so the claim fails.
¶424 25 Judgment affirmed. All the Justices concur.
¶425 26