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Taylor v. State2/17/2004
the test results were ".223." Therefore, Taylor was on notice of a charge of unlawful alcohol concentration under OCGA § 40- 6-391(a)(5). Compare Shelton v. State, 216 Ga.App. 634(1), 455 S.E.2d 304 (1995) (where uniform traffic citation charged defendant with a violation of OCGA § 40-6-391 as a whole and indicated his blood alcohol level, defendant was on notice of the charges against him).
In the third section, Taylor was charged with "DUI," and the officer indicated that the offense was "in Violation of Code Section 40-6-391 A-4." Under Georgia law, "the description of the offense charged prevails over any Code section cited." (Punctuation omitted.) In the Interest of B.C.G., 235 Ga.App. 1, 3(1), 508 S.E.2d 239 (1998). Here, the description of the offense was "DUI" or driving under the influence. The Supreme Court has held that the phrase "driving under the influence" describes those subsections of OCGA § 40-6-391(a) *639 that prohibit a person from driving when they are under the influence of alcohol, drugs, or toxic vapors to the extent that it is less safe for the person to drive. Kevinezz v. State, 265 Ga. 78, 81(2)(b), 454 S.E.2d 441 (1995). See OCGA § 40-6-391(a)(1)-(4). Accordingly, Taylor was also on notice that he was charged with subsections (1) through (4), which include driving under the influence of alcohol to the extent that it is less safe to drive. See OCGA § 40-6-391(a)(1).
We conclude that Taylor was on notice of a charge of violating subsections (a) (1) through (5) of OCGA § 40-6-391.
2. Taylor contends that the evidence was insufficient to convict. But, there was **346 evidence from which a jury could conclude that Taylor was guilty of driving under the influence of alcohol in a less safe manner and guilty of having a blood alcohol level of 0.08 or more within three hours of driving. OCGA § 40-6-391(a)(1), (5).
3. Taylor contends that the trial court improperly charged the jury on subsections (a)(1) and (a)(5). But, our holding in Division 1 resolves this issue against Taylor.
Judgment affirmed.
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