State v. King

Jonathan King was charged with driving under the influence of alcohol to the extent that it was less safe to do so “DUI less safe”1 and driving with an unlawful alcohol concentration “DUI per se”.2 During the trial, the State Court of DeKalb County granted King’s oral motion for general demurrer as to the DUI per se count. The State appeals, contending that the trial court erred in concluding that the accusation was fatally defective because the State failed to include therein essential words from the relevant statute. We agree and reverse. It is well-settled that a charging instrument “should contain a complete description of the offense charged, and that there can be no conviction unless every essential element thereof is both alleged in the indictment and proved by the evidence.”3 However, where an accusation charges the accused with having committed certain acts “in violation of” a specified penal statute, the accusation incorporates the terms of the referenced Code section. Because an accused cannot admit an allegation that her acts were “in violation of” a specified Code section and yet not be guilty of the offense set out in that Code section, such an accusation is not fatally defective. 4 Thus, an accusation will survive a general demurrer if it charges an accused with having committed certain acts in violation of a specific criminal statute, notwithstanding the omission of an essential element of the crime.5

Here, the DUI per se accusation alleges that King “was in actual physical control of a moving vehicle on Piedmont Road with an alcohol concentration of 0.08 grams or more within three hours after being in actual physical control ended sic, in violation of OCGA § 40-6-391. . . . ” OCGA § 40-6-391 a 5 provides that “ a person shall not drive or be in actual physical control of any moving vehicle while . . . the person’s alcohol concentration is 0.08 grams or more at any time within three hours after such driving or being in actual physical control from alcohol consumed before such driving or being in actual physical control ended. “6