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Georgia DUI – Statute of Limitations

Posted by Ben Sessions | Dec 04, 2014 | 0 Comments

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.

If you are very fortunate (and your lawyer is a bit creative), time may very well be on your side:

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.

This post is provided by:

The Sessions Law Firm
115 Martin Luther King, Jr., Dr., SW, #410
Atlanta, GA 30303
Phone: 470-225-7710

About the Author

Ben Sessions

I work to provide exceptional service, attention, and results to each of my clients. Most of clients come to me because they are in a completely overwhelming situation. They need someone that will do more than address their legal problems.

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