The State appeals from the trial court’s order dismissing a state court accusation charging Clay Douglas West with DUI. The trial court reasoned that transfer of the case from the Municipal Court of Suwanee to the state court was not authorized by OCGA § 40-6-376 a, granted West’s motion to dismiss, and transferred the case back to municipal court. This court has recently concluded that OCGA § 40-6-376 a authorizes transfer to state court under the circumstances presented here. See State v. Serio, __Ga. App.__ __SE2d__ A02A1460, decided August 27, 2002; State v. Johnson, __Ga. App.__ __SE2d__ A02A1109, decided August 23, 2002. We therefore reverse.
On October 15, 1999, West was arrested by a City of Suwanee Police Officer and charged with DUI. The case was called for trial in the Municipal Court of Suwanee in April 2000, and defense counsel appeared with West and an out-of-state witness and announced ready for trial. The assistant solicitor for the City of Suwanee also appeared, stating that the city elected to treat the charge as a state offense and requesting that the case be transferred to the State Court of Gwinnett County. Defense counsel objected, arguing that although the prosecutor was authorized to decide whether to treat an offense as a state or local ordinance violation, only the defendant was authorized to “request a transfer to the appropriate state tribunal.” Counsel further argued that she was not told until the morning of trial in municipal court that the city was going to attempt to transfer the case to state court and that West wanted “a trial in City Court. He doesn’t want a jury trial; and while we understand we don’t have to have a jury trial in State Court either, we want the case heard in the Municipal Court of Suwanee. We have a right to. We are not asking that it be transferred to a State tribunal.”
