DUI Statute of Limitations Problems – Transfers to Superior Courts
WHAT TO CONSIDER AFTER A DUI CASE HAS BEEN TRANSFERRED TO SUPERIOR COURT
Treating every case this same generally leads to the same poor result. In every good law office, there needs to be certain processes that are standard. However, what separates really good law offices from the above-average ones is the ability to strategically plan – foresight to see problems for the government in the prosecution of their case.
In jurisdictions where there is no state court – a court whose jurisdiction is limited to the prosecution of misdemeanors, such as most DUI charges, transferring a case from a probate court or municipal court as a result of a demand for a jury trial can result in a significant delay in the prosecution of a DUI charge. Often times, the delay can lead to a prosecution which takes place well past the two (2) year statute of limitations for the prosecution of a misdemeanor DUI in Georgia. As I have discussed previously, the statute of limitations does not bar this prosecution, as long as the prosecution commenced within two (2) years of the date of the alleged offense. Nonetheless, there is one particular problem that occurs quite frequently and those defending DUI charges must be aware of: the amendment or addition of DUI charges after the passing of the statute of limitations.
OCGA § 40-13-3 requires the filing of a formal accusation by the District Attorney to begin the prosecution of a DUI in Superior Court. The relevant portion of OCGA 40-13-3 states:
Except for offenses tried in the superior courts, all other courts having jurisdiction of the offense may proceed with the adjudication of the offenses contained within the complaint without the necessity of filing an indictment or other accusation in order to bring the accused to trial.
When you have a considerable delay in the filing of the accusation in Superior Court, be aware of the original charges contained in the UTC that your client received. The addition of DUI Per Secharge in a formal accusation when the original UTC only contained a DUI Less Safe charge is impermissible. The portion of State v. Rustin, 208 Ga.App. 431, 430 S.E.2d 765 (1993), which controls this issue, is provided below:
The state contends that the superior court erred in granting Rustin’s plea in bar. We agree with the state’s position with regard to the violation of OCGA § 40-6-391(a)(1) which was originally charged on September 30, 1988, but not as to the violation of OCGA § 40-6-391(a)(4) which was initially charged in the accusation filed on November 19, 1991.
OCGA § 17-3-1(d) provides that prosecution for misdemeanors must be commenced within two years after commission of the crime. A prosecution is “commenced” when an accusation or indictment is filed, and continues until final disposition of the case on appeal. OCGA § 16-1-3(14); Smith v. State, 190 Ga.App. 246, 378 S.E.2d 493 (1989). A DUI charge may be prosecuted in a probate or state court on a uniform traffic citation, which constitutes the accusation. OCGA §§ 40-13-1,40-13-3; Boss v. State, 152 Ga.App. 169, 262 S.E.2d 527 (1979). Thus, Rustin’s prosecution in the probate court for the DUI charge alleging a violation of OCGA § 40-6-391(a)(1) was commenced when he was issued the uniform traffic citation and complaint on September 30, 1988. The filing of a formal accusation in any court with jurisdiction over such offenses, other than a superior court, would have been a superfluity. See Majia v. State, 174 Ga.App. 432(1), 330 S.E.2d 171 (1985).
The trial court’s grant of Rustin’s plea in bar resulted out of consideration of the passage of time from the date of the alleged offenses and the date of the formal accusation filed on November 19, 1991, following this court’s remand of the case because of the absence of a written waiver of the right to a jury trial. In Duncan v. State, 193 Ga.App. 793, 389 S.E.2d 365 (1989), this court held that the limitation period was not tolled during the pendency of a prior appeal, and that prosecution of the defendant under a subsequent formal accusation (which added a charge of simple battery) filed after the expiration of the limitation period was barred. However, prosecution of the defendant under the uniform traffic citation was still allowed, although the prosecution was limited to the offenses originally charged in that traffic citation. The same principle is applicable in the instant case.
Upon remand of this case to the probate court, Ruskin exercised his right to a jury trial, and the case was necessarily bound over to the superior court. Consequently, the state was then compelled to file a formal accusation because a uniform traffic citation and complaint cannot be made the basis for a trial in the superior court. OCGA § 40-13-3; Stone v. State, 151 Ga.App. 531, 260 S.E.2d 405 (1979). The prior appeal in this case did not result in a final disposition of the matter, and filing of the formal accusation in November 1991, as required by OCGA § 40-13-3 and as necessitated by Rustin’s demand for a jury trial, in no way constituted commencement of a new prosecution with regard to the alleged violation of OCGA § 40-6-391(a)(1). Under the circumstances presented by this case, although the filing of the accusation in the superior court could not be considered a superfluity because of the requirements of OCGA § 40-13-3, it must be regarded as a continuation of the prosecution previously commenced. For that reason, the trial court erred in granting Rustin’s plea in bar with regard to the charged violation of OCGA § 40-6-391(a)(1).
However, the accusation filed in November 1991 also included a new offense, i.e., an alleged violation of OCGA § 40-6-391(a)(4), driving with an unlawful blood alcohol level. Because that accusation was filed beyond the applicable limitation period, prosecution of this new offense was barred, notwithstanding the fact that it may have stemmed from the same conduct as the original DUI charge. Accordingly, the trial court properly granted Rustin’s plea in bar with regard to the alleged violation of OCGA § 40-6-391(a)(4). Duncan v. State, supra.
The state contends that inclusion of the alleged violation of OCGA § 40-6-391(a)(4)in the November 1991 accusation was a permissible amendment, authorized by OCGA § 17-7-71(f), of the original uniform traffic citation prepared pursuant to OCGA § 40-13-1 and the Rules of Department of Safety, Section 570-19-.01. See generally,Freeman v. State, 194 Ga.App. 905(8), 392 S.E.2d 330 (1990), wherein a second formal accusation prepared pursuant to OCGA § 17-7-71(a), alleging simple assault, amended the original accusation which also alleged simple assault. The issue of amendment of uniform traffic citations by formal accusation under OCGA § 17-7-71(f)was not raised or addressed in Duncan v. State, supra.
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