On March 2, 2009, the Georgia Court of Appeals issued a new Georgia DUI opinion reversing the granting of a general demurrer. The court explained that, based on the wording of the charging documents, there could not be any confusion as to what the Defendant was charged with despite the fact that the prosecutor forgot to include the relevant statute.

The case is State of Georgia v. King.

Court's synopsis:

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")and driving with an unlawful alcohol concentration ("DUI per se"). 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.

Court's analysis:

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.

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."

Court's conclusion:

 Although the accusation did not specifically allege that King's alcohol concentration resulted from alcohol consumed before his driving ended, the accusation was not defective because it alleged that King violated OCGA § 40-6-391 and it was titled "Driving Under the Influence of Alcohol (Per Se)." Thus, there could be no confusion over the crime King was charged with. Under these circumstances, the trial court erred in sustaining King's general demurrer regarding the DUI per se charge.

Discussion:

As a practicing DUI defense lawyer, I hear people who are accused of DUI pin their hopes on minor defects in the charging documents, citations, police reports. It is very rare that a typo or omission will result in a dismissal of a DUI case, or any kind of leverage in the case whatsoever.

This case is an example of something that is much more significant than a typo, but that is still not fatal to a DUI prosecution.