The Superior Court of Marion County affirmed the order of the Probate Court convicting Sam Rigdon of driving under the influence of alcohol to the extent that it was less safe to drive, OCGA § 40-6-391 a 1.1 Rigdon appeals, contending that the probate court violated his due process rights by convicting him under the less safe provisions of the statute after limiting the State’s proof at trial to a so-called per se violation, OCGA § 40-6-391 a 5, and that the superior court erred in finding that any errors committed by the probate court were harmless. Rigdon also challenges the sufficiency of the evidence. For the reasons which follow, we reverse. 1. In related enumerations, Rigdon contends that the probate court violated his due process rights by convicting him under OCGA § 40-6-391 a 1 “less safe DUI” after limiting the State’s proof at trial to an alternative method of proving DUI, OCGA § 40-6-391 a 5 “per se DUI”. “Because the evidence is uncontroverted and there is no question concerning the credibility of witnesses, we conduct a de novo review of the trial court’s application of the law to the undisputed facts.” Citation and punctuation omitted. Lockett v. State , 257 Ga. App. 412, 413 1 571 SE2d 192 2002. In pertinent part, OCGA § 40-6-391 a provides: A person shall not drive or be in actual physical control of any moving vehicle while: 1 Under the influence of alcohol to the extent that it is less safe for the person to drive; . . . or 5 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. Thus, under the less safe DUI subsection, the State must prove impaired driving ability as an element of the crime. Kevinezz v. State , 265 Ga. 78, 79 2 454 SE2d 441 1995. Under the per se DUI subsection, on the other hand, the State need not prove impaired driving; rather, the illegal act is driving with an illegal blood-alcohol concentration. Bohannon v. State , 269 Ga. 130, 131 1 497 SE2d 552 1998; Kevinezz v. State , 265 Ga. at 79 2 .
The record shows the following undisputed facts. On August 8, 2002, state patrol officers stopped Rigdon at a roadblock to check his license and insurance. An officer smelled an alcoholic beverage on Rigdon and had Rigdon perform field sobriety tests. The officer arrested Rigdon for DUI and, while transporting him to the jail, became concerned about his health and called for an ambulance. At the officer’s request, a paramedic drew a blood sample for chemical analysis. The arresting officer issued Rigdon a uniform traffic citation “UTC”, checking the boxes for “DUI” and “Test Administered: Blood.” In the blank following “Test Results,” the officer inserted “Pending.” In the offense section of the UTC, the officer wrote “40-6-391.”
