Attacking the specificity of Georgia DUI accusations and indictments is an important tool for the DUI practitioner. While the limitations on vagueness in accusations and indictments seem to erode each year, there still are some favorable cases that Georgia DUI practitioners may rely upon. I will use this post to provide an ongoing list of cases favorable to the defense in this area of DUI practice. It is important to be extremely strategic in your approach to these issues. Divulging a potential error in the charging documents at an improper time may simply result in an amendment to “fix” the alleged defect.
Initially, we will address why we disagree with Scott's holding that where an indictment charges a defendant with “driving under the influence of alcohol,” the defendant is put on notice that he could be convicted of the crime in any of the different ways in which it can be committed. Whatever the merits of this rule with regard to crimes other than “driving under the influence” that can be committed in more than one way, it has no application where the name of the alleged crime, here “driving under the influence,” is descriptive of one or more of the ways in which the crime may be committed but is not descriptive of others. In such cases, the rule in Scott runs headlong into the rule that when a crime can be committed in more than one way, the prosecution cannot be permitted to prove that crime in a different manner than that alleged in the indictment. See Sapp v. State, 184 Ga.App. 527, 528, 362 S.E.2d 406 (1987) . In such cases, we conclude that the defendant has the right to rely on the specific manner of committing the crime that is alleged in the indictment.
Turning to the language of the indictment in this case, we conclude that the phrase “driving under the influence of drugs” describes a specific method by which the crime of driving under the influencemay be proved. See Hogan v. State, 178 Ga.App. 534, 536, 343 S.E.2d 770 (1986) . It has been held the phrase “driving under the influence of alcohol” has a “universally recognized and understood meaning” so that reasonable persons could not differ as to its interpretation. Cargile, 244 Ga. at 873, 262 S.E.2d 87. That meaning is that a person is under the influence of alcohol “ ‘when it appears that it is less safe for such person to operate a motor vehicle.' ” Cargile, 244 Ga. at 873, 874, 262S.E.2d 87 (quoting Cook v. State, 220 Ga. 463, 465(2), 139 S.E.2d 383 (1964) ). Clearly, the phrase “under the influence of drugs” would have the same universally understood meaning as “under the influence of alcohol.” The foregoing universally understood meaning is embodied in the language of § 40-6-391(a), which couples the term “under the influence” with the concept of being a less safe driver, see § 40-6-391(a)(1), (2), and (3) . Thus, in Hogan the Court of Appeals properly held that the phrase “driving under the influence,” with respect to both alcohol and drugs, and the phrase “to the extent it is less safe for the person to drive,” see § 40-6-391(a)(1), (2), and (3) , “are not two separate elements … [but] are equivalent concepts describing [the same] physical condition.” Hogan, 178 Ga.App. at 535-36, 343 S.E.2d 770. Accordingly, an indictment or accusation charging a defendant with driving under the influence of alcohol or drugs, even if it does not specify “to the extent it was less safe for [the defendant] to drive,” is an indictment that charges the defendant with violating § 40-6-391(a) in one of the three ways specified by subsections (a)(1), (2), or (3). Hogan, 178 Ga.App. at 535-37, 343 S.E.2d 770 (indictment charging defendant with “driving under the influence of alcohol” charged defendant with violating § 40-6-391(a)(1)). Conversely, such an indictment would not put a defendant on notice that he or she could be convicted under § 40-6-391(a)(4) or (5), which do not contain the phrase “under the influence” and do not require the state to prove impaired driving ability, Hogan, 178 Ga.App. at 536, 343 S.E.2d 770; Lester, 253 Ga. at 237-38(4), 320 S.E.2d 142.
Given the foregoing considerations, we hold that Kevinezz's indictment failed to put her on notice that she could be convicted of vehicular homicide based on a violation of § 40-6-391(a)(5). See Sapp v. State, 184 Ga.App. 527, 528, 362 S.E.2d 406 (1987) (if a defendant is charged with violating § 40-6-391(a)(4), he is not put on notice that he may be convicted of violating § 40-6-391(a)(1)). We overrule Scott to the extent it is contrary to this holding.
Kevinezz v. State, 265 Ga. 78, 454 S.E.2d 441 (1995).
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