Scott Johnson appeals following the trial court’s denial of his plea in bar on double jeopardy grounds. The City Court of Atlanta tried Johnson on four counts: driving under the influence of alcohol to the extent that it was less safe for him to drive, OCGA § 40-6-391 a 1; driving on the wrong side of the road, OCGA § 40-6-40; disobeying a traffic control device, OCGA § 40-6-20; and reckless driving, OCGA § 40-6-390. The trial court granted a mistrial as to all four counts after the jury, having reached a decision on the wrong side, traffic control device, and reckless driving counts, deadlocked on the DUI charge. Johnson contends that the trial court erred in failing to grant his request to accept the jury’s unanimous verdict on three counts of a four-count accusation where the jury was hung on the remaining count. Johnson further contends the trial court abused its discretion in granting the State’s motion for mistrial as to the undecided count. For the reasons which follow, we reverse the denial of Johnson’s plea as to the three decided counts and affirm as to the undecided count.
The record reflects that after the presentation of evidence, the jury announced that it had reached a unanimous verdict on three counts of the accusation but was deadlocked on the DUI count. The trial court directed the jury to continue their deliberations and attempt to resolve the remaining count. After further deliberations, the jury again informed the trial court that it was deadlocked as to the DUI count. The trial court read the Allen charge1 to the jury. After further deliberations, the jury informed the trial court a third time that it was deadlocked as to the DUI count and that the vote had not changed. When the State moved for a mistrial, Johnson’s counsel requested that the trial court receive the verdicts on the three counts as to which the jury had reached unanimous agreement, and the State concurred. The trial court noted that the presentation of the evidence had lasted about one hour and 40 minutes and that the jury had deliberated for three hours and 20 minutes, including 40 minutes after the Allen charge. The trial court entered a mistrial on all four counts and later denied Johnson’s motion to dismiss based on his plea of former jeopardy.
