 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Slinkard v. State2/3/2003
A Douglas County jury found William Slinkard guilty of improper passing and driving under the influence of alcohol - less safe driver and per se excessive blood alcohol content ("BAC"), which charges arose when, immediately after a red stoplight turned green at the corner of Fairburn and Mack Roads, Slinkard maneuvered his Harley-Davidson motorcycle between two adjacent northbound vehicles and passed them; one of the vehicles was a Douglas County Sheriff's patrol car. As Slinkard explained to the detaining deputy, "the light changed and I didn't want to stop." Upon review, we affirm his conviction.
1. Slinkard was tried on a uniform traffic citation ("UTC") which charged him with "DUI" and listed the DUI breath BAC test results as ".082 gms." The UTC then further explained the DUI charge as "Alcohol in Violation of Code Section 40-6-391 (A1-5)." After issue had been joined and a jury impaneled and sworn, Slinkard made an oral motion to quash the UTC as a defective charging instrument, which motion was denied by the trial court. He now claims error in the trial court's ruling as follows:
(a) Slinkard contends that by referencing subsections (1) - (5) of OCGA § 40-6-391 (a), the UTC on its face alleged "more than one offense" when, as Slinkard argues by brief, this Court's decision in State v. Rustin "indicates that alternative counts or methods of proving the offense of DUI must be separately and individually charged[.]" We disagree.
(i) This challenge goes to the form of the UTC, not the substance of the charged offense affecting the real merits thereof so as to sustain a motion in arrest of judgment, which was not filed in this case. Where a defendant desires to take exception to the form of a charging instrument, "it is essential that he should do so by a demurrer or motion to quash, made in writing and before entering a pleading to the merits."
If the indictment was void for any reason, the question should have been raised by demurrer before pleading to the merits, or by motion in arrest of judgment after conviction. No demurrers or motions in arrest of judgment were filed by [Slinkard]. . . . Under controlling Supreme Court authority, [Slinkard's] motion for new trial cannot be considered to be a viable procedural substitute for a motion in arrest of judgment.
Accordingly, this claim of error was not properly preserved and presents nothing for our review.
(ii) The complained of UTC did not allege "more than one offense." A single statutory offense was charged on the face of the UTC, i.e., a violation of OCGA § 40-6-391 (a); the various subsections under OCGA § 40-6-391 (a) are not different "offenses" in and of themselves, but different methods of proving a violation of OCGA § 40-6-391 (a), which may be charged in one count. Thus, the trial court did not err in denying Slinkard's oral motion to quash the UTC on the basis that it charged "more than one offense."
(iii) This Court's decision in State v. Rustin, supra, dealing with amendment to an original UTC is inapplicable in this case. Rustin held that OCGA § 17-7-71 (f) authorizing amendment to an accusation does not authorize a subsequent amendment to a UTC in order to add a violation that was not stated in the original UTC. Rustin does not stand for - and had nothing to do with - the proposition put forth by Slinkard that a UTC which originally charges a violation of OCGA § 40-6-391 (a) (1) - (5) is defective so as to sustain demurrer if each subsection (1) - (5) is not charged on a separate UTC. In fact, "we have held that a single UTC may properly charge a defendant with alternative methods of violating OCGA § 40-6-391." Thus, the trial court did not err in
Page 1 2 3 4 Georgia DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|