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March 31, 2014

Amendment of Charges in a Georgia DUI Case

Below is portion of a brief I have submitted in a case currently pending. The issues in this particular DUI case are somewhat unique; however, the problem posed by late (very, very late) amendments of accusations are not unique, particularly in metro-Atlanta courts. This particular case is pending in the Fulton County State Court.

PLEA IN BAR

Comes Now, the Defendant in the above-styled case, by and through his counsel of record, and respectfully moves that the Court enter an Order absolutely discharging and acquitting him of the charges of driving under the combined influence of alcohol and drug and driving under the influence of alcohol – less safe. In furtherance of the Defendant’s plea in bar, the Defendant respectfully shows this Honorable Court the following:

On or about June 23, 2007, the Defendant was arrested by Officer XXXXXXXXXXXX of the XXXXXXXXXX Police Department for DUI, speeding, and failure to obey a traffic control device. On or about April 29, 2009, the XXXXXXXXXX County Solicitor General filed in the XXXXXXXXXX County State Court Clerk’s office an accusation against the Defendant. The accusation included four separate counts. Among the four counts were charges of driving under the influence of marijuana – per se and driving under the influence of a drug – less safe. On February 18, 2011, the state filed an accusation purporting to amend the charge of driving under the influence of marijuana to driving under the combined influence of alcohol and drug. On February 22, 2011, the state also filed an accusation purporting to amend the charge of driving under the influence of drug – less safe to driving under the influence of alcohol – less safe. Both of these attempted amendments are made approximately 44 months after the date of the Defendant’s arrest.

Pursuant to OCGA § 17-3-1(d), “[p]rosecution for misdemeanors must be commenced within two years after the commission of the crime.” “The two-year period runs from the date the offense was committed until the date the original accusation is filed.” Prindle v. State, 240 Ga.App. 461, 523 S.E.2d 44 (1999). In the instant case, the original accusations were filed within the statute of limitation, but the amended accusations were not.

OCGA § 17-7-71(f) governs the amendment of accusations and provides, in pertinent part:

[P]rior to trial, the prosecuting attorney may amend the accusation, summons, or any citation to allege or to change the allegations regarding any offense arising out of the same conduct of the defendant which gave rise to any offense alleged or attempted to be alleged in the original accusation, summons, or citation.

The questioned presented to the Court by the State’s purported amendments to the accusations in this case is whether the amended accusations were valid since they were filed after the expiration of the applicable two-year statute of limitation.

“[A]n amended accusation is valid as long as the original accusation was still pending, was timely, and did not broaden or substantially amend the original charges.”  Lee v. State, 304 Ga.App. 681, 697 S.E.2d 221, 223 (2010)(emphasis added), citing Wooten v. State, 240 Ga. App. 725, 524 S.E.2d 776 (1999). The State’s attempt to amend the DUI charges in this case broaden and substantially amend the original charges. As recognized in State v. Rustin, 208 Ga. App. 431, 433, 430 S.E.2d 765 (1993), these purported amendments are the addition of a new offense requiring different evidence and methods of proof.

1. Amendment of the accusation of driving under the influence of marijuana to driving under the combined influence of alcohol and drug.

As originally filed on April 29, 2009, the charge of driving under the influence of marijuana alleged:

I, XXXXXXXXXX, Solicitor General for the County of XXXXXXXXXX, State of Georgia, on the name and on behalf of the citizens of Georgia do hereby charge and accuse XXXXXXXXXX with the offense of DRIVING UUNDER THE INFLUENCE OF MARIJUANA (MHAN), a misdemeanor of a high and aggravated nature, for that  said accused in the County of XXXXXXXXXX, State of Georgia on JUNE 23, 2007 did DRIVE A MOVING VEHICLE with marijuana present in HIS URINE, in violation of O.C.G.A. §40-6-391, contrary to the laws of this state, the good, order, peace and  dignity thereof.

The State has attempted to amend this charge on February 18, 2011 to the following:

I, XXXXXXXXXX, Solicitor General for the County of XXXXXXXXXX, State of Georgia, in the name and on behalf of the citizens of Georgia do hereby charge and accuse XXXXXXXXXX with the offense of DRIVING UNDER THE COMBINED INFLUENCE OF ALCOHOL AND DRUG, a misdemeanor, for that said accused in the County of XXXXXXXXXX, State of Georgia on June 23, 2007 did drive a moving vehicle on U.S. Interstate 285 West while under the combined influence of alcohol and drug to the extent that it was less safe for the defendant to  drive, in violation of O.C.G.A § 40-6-391, contrary to the laws of this state, the good, order, peace and  dignity thereof.

The purported amendment broadens and substantially alters the original charge in, at least, two material ways:

  1. The original charge alleged that the Defendant was under the influence of marijuana (O.C.G.A. § 40-6-391(a)(6)), and the purported amendment alleges that the Defendant was under the influence of alcohol and a drug (O.C.G.A. § 40-6-391(a)(4)). The proof which must be adduced at trial upon these two charges is, by definition, substantially different because the State cannot simply rely upon proof that the Defendant had marijuana in his urine at the time of driving.
  2. The original charge alleged that the Defendant committed a per se violation of O.C.G.A. § 40-6-391(a)(6), and the purported amendment alleges that the Defendant committed a less safe violation of O.C.G.A. § 40-6-391(a)(4). Under the purported amendment, the State must show impaired driving ability; whereas, the original charge required no showing of impaired driving ability.

Accordingly, the purported amendment of this charge does not meet with the requirements of  Lee v. State and Wooten v. State in that the amendment broadens and substantially alters the charge.

2. Amendment of the accusation of driving under the influence of drug – less safe to driving under the influence of alcohol – less safe.

As originally filed on April 29, 2009, the charge of driving under the influence of drug – less safe alleged:

I, XXXXXXXXXX, Solicitor General for the County of XXXXXXXXXX, State of Georgia, on the name and on behalf of the citizens of Georgia do hereby charge and accuse XXXXXXXXXX with the offense of DRIVING UUNDER THE INFLUENCE OF DRUG, LESS SAFE, a misdemeanor, for  that said accused  in the County of XXXXXXXXXX, state of Georgia on JUNE 23, 2007 did DRIVE A MOVING VEHICLE on U.S. INTERSTATE 285 WEST while  under the influence of a drug to the extent that it was less safe for the defendant to drive, in violation of O.C.G.A § 40-6-391, contrary to the laws of this state, the good, order, peace and  dignity thereof.

The State has attempted to amend this charge on February 22, 2011 to the following:

I, XXXXXXXXXX, Solicitor General for the County of XXXXXXXXXX, State of Georgia, in the name and on behalf of the citizens of Georgia do hereby charge and accuse XXXXXXXXXX with the offense of DRIVING UNDER THE INFLUENCE OF ALCOHOL, LESS SAFE, a misdemeanor, for that said accused in the County of XXXXXXXXXX, State of Georgia on June 23, 2007 did drive a moving vehicle on U.S. Interstate 285 West while under the influence of alcohol to the extent that it was less safe  for the defendant to drive, in violation of O.C.G.A § 40-6-391, , contrary to the laws of this state, the good, order, peace and  dignity thereof.

The purported amendment broadens and substantially alters the original charge by alleging that the Defendant was under the influence of alcohol in violation of O.C.G.A. § 40-6-391(a)(1) as opposed to a drug (O.C.G.A. § 40-6-391(a)(2)), which was the basis for the original timely filed charge. The proof which must be adduced at trial upon these two charges is, by definition, substantially different and a material allegation to this charge.

Accordingly, the purported amendment of this charge does not meet with the requirements of  Lee v. State and Wooten v. State in that the amendment broadens and substantially alters the charge.

WHEREFORE, the Defendant respectfully requests that this Honorable Court grant his plea in bar and dismiss the purported amendments to the DUI charges in this case.

Respectfully submitted, this __ day of February, 2011.

——–

A significant case addressing amendment of charges after the statute of limitations has expired is:

D‘AURIA v. THE STATE.

S98A2002.

SUPREME COURT OF GEORGIA

270 Ga. 499; 512 S.E.2d 266; 1999 Ga. LEXIS 103; 99 Fulton County D. Rep. 565

February 8, 1999, Decided

PRIOR HISTORY: [***1]  O.C.G.A. § 16-6-22.1; constitutional question. DeKalb State Court. Before Judge Smith.

Date of Judgment Appealed: 06-20-95. Notice of Appeal Date: 12-24-97. Lower Ct # :93C105641.

DISPOSITION: Judgment reversed.

COUNSEL: Wilson, Morton & Downs, Robert E. Wilson, Bryan A. Downs, Ellen S. Cheek, for appellant.

Ralph T. Bowden, Jr., Solicitor, Debra M. Sullivan, W. Cliff Howard, Thomas E. Csider, Gwendolyn R. Keyes, Assistant Solicitors, for appellee.

JUDGES: Hunstein, Justice. All the Justices concur, except Benham, C. J., Thompson and Hines, JJ., who dissent.

OPINION BY: HUNSTEIN

OPINION

[*499]   [**266]  Hunstein, Justice.

Ralph D’Auria was charged with the offense of sexual battery under O.C.G.A. § 16-6-22.1 in an accusation filed by the State in February 1993. The accusation was amended in May 1993 to reflect the victim’s married name. In April 1995, D’Auria filed a plea in bar based on the statute of limitation, a plea in bar based on double jeopardy, and a demurrer based on the alleged unconstitutionality of O.C.G.A. § 16-6-22.1. After a complicated procedural history, D’Auria now appeals from the trial court’s denial of his statute of limitation and constitutional challenges.

O.C.G.A. § 16-6-22.1 (b) provides: “A [***2]  person commits the offense of sexual battery when  [**267]  he intentionally makes physical contact with the intimate parts of the body of another person without the consent  [*500]  of that person.” “Intimate parts” are defined to include “the primary genital area, anus, groin, inner thighs, or buttocks of a male or female and the breasts of a female.” Id. at (a). In its May 1993 accusation, the State charged D’Auria with the offense of sexual battery “by making contact with the intimate body parts of [the victim] in violation of O.C.G.A. § 16-6-22.1.” 1 D’Auria contends his prosecution is barred because the State failed to file a valid accusation within the applicable two-year statute of limitation. See §§ 17-3-1 (d); 16-6-22.1 (c). He argues, inter alia, that the May 1993 accusation is invalid because it failed to provide the specificity necessary to apprise him of what he is alleged to have done in violation of law. Based on the facts in this particular case, we agree.

1   The accusation specifically alleged that on August 8, 1992 D’Auria “committed the offense of SEXUAL BATTERY by making contact with the intimate body parts of [the victim] in violation of O.C.G.A. § 16-6-22.1 contrary to the laws of this State, the good order, peace and dignity thereof.”

[***3]  1. An accusation will be held insufficient unless it contains the elements of the offense intended to be charged, sufficiently apprises the defendant of the crimes against which he must defend at trial, and is specific enough to protect the defendant against another prosecution for the same offense.  McCrary v. State, 252 Ga. 521, 523 (314 S.E.2d 662) (1984); see State v. Eubanks, 239 Ga. 483, 486 (238 S.E.2d 38) (1977) (failure to charge necessary elements of crime voids the indictment). See generally O.C.G.A. § 17-7-71 (c) (accusation sufficient if it states offense in terms and language of law or so plainly that nature of offense charged may be easily understood by jury). In this case, D’Auria, a physician, was treating the victim for injuries she received in an automobile accident. At the time of the alleged crime, D’Auria was providing ongoing medical treatment to the victim who voluntarily submitted herself to at least minimal physical contact by her physician. However, the May 1993 accusation does not identify which body parts were allegedly touched without her consent or more specifically identify the manner in which the illegal touching allegedly occurred. The May 1993 [***4]  accusation does nothing more than reference the statute alleged to have been violated and recite some, but not all, of the elements of the crime of sexual battery. Although recitation of the statute may, in certain cases, be a sufficient, though not desirable, method of apprising a defendant of the charges against him, see Broski v. State, 196 Ga. App. 116, 117 (1) (395 S.E.2d 317) (1990), recitation of portions of the statute is not sufficient if, reading the accusation together with the statute, a defendant is unable to determine which of his acts are alleged to be criminal in nature. See generally England v. State, 232 Ga. App. 842, 844 (2) (a) (502 S.E.2d 770) (1998) and State v. Black, 149 Ga. App. 389, 391 (4) (254 S.E.2d [*501] 506) (1979) (where crime may be committed in several ways, failure to charge manner in which crime was committed subjects accusation to special demurrer). Under the facts of this case, we find that mere recitation of portions of the statute was not sufficient to enable D’Auria to prepare for trial and respond to the charges against him. Accordingly, there being no valid accusation filed within two years from the time of the alleged crime, it was [***5]  error for the trial court to deny D’Auria’s plea in bar based on the statute of limitation.

2. We need not address D’Auria’s constitutional challenge to O.C.G.A. § 16-6-22.1 based on our ruling in the first division.

Judgment reversed. All the Justices concur, except Benham, C. J., Thompson and Hines, JJ., who dissent.

———-

Ben Sessions is a DUI lawyer and partner in the Norcross firm of McIlhinney & Sessions. His practice is focused on the defense of clients charged with DUI and other drug and alcohol-related offenses. Ben has co-authored articles and participated in seminars before the National College for DUI Defense (NCDD), the Georgia Public Defender Standards Council, and other organizations. He is certified as both a Practitioner and Instructor of the National Highway Safety Traffic Safety’s Standardized Field Sobriety Testing procedures. He has received extensive training in forensic breath, blood, and urine testing. He is a member of the National College for DUI Defense, the National Association of Criminal Defense Lawyers, and the Georgia Association of Criminal Defense Lawyers. Ben Sessions graduated from the University of Georgia School of Law. In 2010, he was named a “Rising Star” in the area of DUI defense by the Super Lawyers Magazine, and he was recognized for the “Greatest Trial Victory of the Year” by the Georgia Defense of Drinking Drivers Group.

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Georgia DUI – Statute of Limitations

Filed under: DUI Practice,DUI Statute of Limitations — Tags: — Ben Sessions @ 2:35 am

There are jurisdictions both in metro-Atlanta and in more rural jurisdictions that take quite a while to begin prosecuting DUI cases. As a result of these delays, DUI defendants regularly ask me if they are protected from prosecution by the statute of limitations.

The statute of limitations for a misdemeanor DUI offense in Georgia is 2 years. The statute of limitations is met with the initiation of the prosecution. We could literally argue all day about constitutes initiation of a prosecution. There are cases that support the idea that prosecution initiates with the issuance of a citation (also known as a traffic ticket). On the other hand, there are cases that support the idea that a prosecution is not initiated until an accusation or UTC is filed by the prosecutor.

Below is an except from a recent brief addressing the timeliness of an amendment to DUI accusation:

1. Amendment of the date of the alleged offense is a substantial amendment of the charge of driving under the influence of alcohol – less safe and is barred by the applicable 2-year statute of limitations.

As originally filed on November 15, 2010 the charge of driving under the influence of alcohol – less safe alleged:

I, *****************, Solicitor General for the County of Fulton, State of Georgia, in the name and on behalf of the citizens of Georgia do hereby charge and accuse ************* with the offense of DRIVING UNDER THE INFLUENCE OF ALCOHOL, LESS SAFE, a misdemeanor, for that said accused in the County of Fulton, State of Georgia on March 7, 2009 did drive a moving vehicle on Roswell Road while under the influence of alcohol to the extent that it was less safe for the defendant to drive, in violation of O.C.G.A § 40-6-391, contrary to the laws of this state, the good, order, peace and dignity thereof.

The State has attempted to amend this charge on September 9, 2011 to the following:

I, ***************, Solicitor General for the County of Fulton, State of Georgia, in the name and on behalf of the citizens of Georgia do hereby charge and accuse ************ with the offense of DRIVING UNDER THE INFLUENCE OF ALCOHOL, LESS SAFE, a misdemeanor, for that said accused in the County of Fulton, State of Georgia on March 27, 2009 did drive a moving vehicle on Roswell Road while under the influence of alcohol to the extent that it was less safe for the defendant to drive, in violation of O.C.G.A § 40-6-391, contrary to the laws of this state, the good, order, peace and dignity thereof.

The purported amendment which states alters the date of an offense alleges substantially alters the original charge in the accusation filed November 15, 2010. By alleging that the Defendant committed the offense of DUI – less on a different, the purported amendment filed on September 9, 2011 contains a completely different date than that which is contained in the accusation originally filed. The proof which must be adduced at trial upon these two charges is, by definition, substantially different.

The general rule is that when the exact date of a crime is not a material allegation of the indictment, the crime may be proved to have taken place on any date prior to the return of the indictment, so long as the date is within the applicable statute of limitation….

Evans v. State, 246 Ga. App. 895, 543 S.E.2d 37, 38 (2000)(emphasis added), quoting Holder v. State, 242 Ga. App. 479, 479-480, 529 S.E.2d 907 (2000).

The date of the offense alleged in the purported amendment to the accusation against the Defendant is outside of the statute of limitations and, therefore, a material allegation pursuant to Evans.

Accordingly, the purported amendment of this charge does not meet with the requirements of Lee v. State and Wooten v. State in that the amendment broadens and substantially alters the charge.

—————

Ben Sessions is a DUI lawyer and partner in the firm of McIlhinney & Sessions. His practice is focused on the defense of clients charged with DUI and other drug and alcohol-related offenses. Ben has co-authored articles and participated in seminars before the National College for DUI Defense (NCDD), the Georgia Public Defender Standards Council, and other organizations. He is certified as both a Practitioner and Instructor of the National Highway Safety Traffic Safety’s Standardized Field Sobriety Testing procedures. He has received extensive training in forensic breath, blood, and urine testing. He is a member of the National College for DUI Defense, the National Association of Criminal Defense Lawyers, and the Georgia Association of Criminal Defense Lawyers. Ben Sessions graduated from the University of Georgia School of Law. In 2010 and 2011, he was named a “Rising Star” in the area of DUI defense by the Super Lawyers Magazine. In 2010, he was recognized for the “Greatest Trial Victory of the Year” by the Georgia Defense of Drinking Drivers (DODD) Group. In 2011, Ben was recognized as the “DUI Lawyer of the Year” by DODD.

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