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Georgia DUI Vehicular Homicide

Prather v. State, ___ S.E.2d ___, 2010 WL 892084 (Ga.App. March 15, 2010).

Prather was involved in a car collision that killed another driver when Prather’s vehicle crossed a median and crashed into oncoming traffic. Based on this collision, Prather was indicted for (1) vehicular homicide through a DUI less safe violation, (2) vehicular homicide through a reckless driving violation, (3) DUI less safe, (4) reckless driving, and (5) driving with a suspended license.  The jury found Prather guilty of all five charges.

Following a jury’s guilty verdict on all five counts, Prather moved for a new trial challenging, in part, the sufficiency of the evidence as to the charges of vehicular homicide based on reckless driving and reckless driving, and he also argued that the trial court improperly charged the jury on each of the charges except his suspended license charge. The trial court ultimately agreed that the jury charges as to the counts other than the suspended license charge were improper and granted Prather a new trial as to each of the charges except for the suspended license charge. In its orders addressing Prather’s motion for new trial, the trial court did not make explicit findings as to the sufficiency of the evidence to convict on the counts based on reckless driving.

Prather initially filed an appeal from the trial court’s orders which granted him a new trial.  Prather challenged the sufficiency of the evidence to prove that he intended to cross into oncoming traffic as alleged in the indictment. The Court of Appeals dismissed his first appeal on jurisdictional grounds. Facing a second trial, Prather filed a plea in bar asserting double jeopardy based on the State’s alleged failure to present sufficient evidence in the first trial as to the counts based on reckless driving.  The trial court found the evidence sufficient, denied the plea, ruled that a second trial could be held even in the event that Prather appealed the denial of his plea in bar, and set a trial date. Prather filed this appeal and an emergency motion in this Court seeking to stay the second trial pending the outcome of the appeal. This Court granted the motion, the trial was stayed, and we now address Prather’s appeal.

In this appeal, Prather contended that he cannot be retried on the counts predicated on reckless driving because the State failed to prove the offenses as alleged in the indictment.

What is the standard for determining whether a retrial is precluded upon a   post-conviction reversal or grant of a motion for new trial?

If the evidence in the original proceeding meets the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the case may be retried:

the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

443 U.S. at 319(III)(B).

With respect to the charges based on reckless driving, the indictment accused Prather of the following:

[Count 2]: [Prather] did unlawfully, without malice aforethought, cause the death of [the victim] through the violation of OCGA § 40-6-390, by driving his vehicle in reckless disregard for the safety of persons or property, by leaving the roadway and driving into oncoming traffic[,] contrary to the laws of [Georgia]….

[Count 4]: [Prather] did drive a motor vehicle in reckless disregard for the safety of persons and property, by leaving the roadway and driving into oncoming traffic[,] contrary to the laws of [Georgia]….

The evidence at showed that as Prather drove his vehicle through the rain at 15-20 mph over the speed limit, he was weaving in and out of his lane.  A witness saw him “driving fast and swerving” and described it as “an accident waiting to happen.” Prather eventually crossed the median into oncoming traffic. He collided with a van, which was then hit by a tractor trailer, and the occupant of the van was killed. Prather asked a bystander for a breath mint.  A doctor who treated Prather for his injuries smelled alcohol on Prather’s breath. Prather’s blood alcohol concentration, as determined by what appeared to be a hospital blood test, was 0.135.

Prather argued that the State failed to prove the offense as indicted, i.e., that he drove recklessly by “leaving the roadway and driving into oncoming traffic.” However, there was testimony from an eye witness who described Prather as “weaving,” “kind of not really staying in his lane, swerving … I saw the vehicle go over into like a patchy grassy area off of the expressway back onto the expressway and then over the median into incoming traffic going in the opposite direction.” While Prather argued that he was hit from behind, causing him to crash and that there was no evidence that he specifically intended to drive off of the roadway or cross into oncoming traffic, the jury was authorized to disbelieve him.  Further,”[i]n order to establish a [reckless driving] violation …, the State needed only to present evidence showing that defendant drove his car in a manner exhibiting reckless disregard for the safety of persons or property,” through facts as alleged in the indictment. The evidence showed that Prather, on the day alleged in the indictment, drove while intoxicated and weaved in and out of his lane, on and off the roadway, ultimately crashing into oncoming traffic and killing the victim. The allegations in the indictment were thus proven by this evidence. Therefore, the trial court did not err in ruling that the evidence sufficed to support the guilty verdict as to the indicted reckless driving offenses.

To the extent that Prather contends that the evidence at trial fatally varied from the allegations in the indictment, our courts do not “employ an overly technical application of the fatal variance rule, focusing instead on materiality.” (Punctuation omitted.) Delacruz v. State, 280 Ga. 392, 396(3), 627 S.E.2d 579 (2006). We conclude that the allegations here were sufficiently definite to inform Prather as to the charges against him so as to enable him to present his defense and not to be taken by surprise, and that the allegations in the indictment adequately protected Prather against another prosecution on the merits for the same offense. See id.

What do you do when the trial court denies your plea in bar and decides that the trial will go forward despite your appeal of its denial?

The trial court found Prather’s plea in bar to be nonfrivolous, but ruled that it could proceed with a new trial during the pendency of this appeal. After Prather filed his appeal, he filed an emergency motion with the Court of Appeals seeking to stay the second trial pending the outcome of the appeal. The Court of Appeals granted the motion, the trial was stayed, and his appeal was addressed.

Be aware that if the trial court finds the plea in bar to be frivolous, the retrial may continue despite the filing of a notice of appeal.  SeeRielli v. Oliver, 170 Ga.App. 699, 699-700, 318 S.E.2d 173 (1984) (noting that a denial a plea of double jeopardy is directly appealable but holding that “if the plea of double jeopardy is found to be frivolous, the filing of a notice of appeal by the defendant shall not divest the trial court of jurisdiction over the case”).  As explained in Patterson v. State, 248 Ga. 875, 876, 287 S.E.2d 7 (1982), addressing a non-dilatory plea of double jeopardy,

the rights conferred on a criminal accused by the Double Jeopardy clause would be significantly undermined if appellate review of double jeopardy claims were postponed until after conviction and sentence. To be sure, the Double Jeopardy Clause protects an individual against being twice convicted for the same crime, and that aspect of the right can be fully vindicated on an appeal following final judgment. However it has long been recognized that the Double Jeopardy Clause protects an individual against more than being subjected to double punishments. It is a guarantee against being twice put to trial for the same offense. Obviously, this aspect of the guarantee’s protections would be lost if the accused were forced to “run the gauntlet” a second time before an appeal could be taken; even if the accused is acquitted, or, if convicted, has his conviction ultimately reversed on double jeopardy grounds, he has still been forced to endure a trial that the Double Jeopardy Clause was designed to prohibit. If a criminal defendant is to avoid exposure to double jeopardy and thereby enjoy the full protection of the Clause, his double jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs.

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Ben Sessions, Attorney at Sessions Law Group
Ben Sessions

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