Garrison v. State
| Docket Number | A23A1032 |
| Decision Date | 20 July 2023 |
| Parties | GARRISON v. THE STATE. |
| Court | Georgia Court of Appeals |
A jury convicted Misty Michelle Garrison of DUI less safe (combined influence), DUI less safe (alcohol), failure to maintain lane, and improper tires. Following the denial of her motion in arrest of judgment, Garrison appeals, arguing that the trial court erred in denying her motion. She also contends that the trial court erred in instructing the jury that they could consider her refusal to submit to a state administered blood test and in admitting a state trooper's testimony regarding field sobriety testing. We disagree and affirm.
"On appeal from a criminal conviction, the evidence is viewed in a light most favorable to the verdict." (Citation omitted.) Stephens v. State, 247 Ga.App. 719, 719 (545 S.E.2d 325) (2001). We neither weigh the evidence nor judge witness credibility but determine only "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Emphasis omitted.) Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 S.Ct. 2781, 61 L.E.2D 560) (1979).
So viewed, the record shows that, around noon on November 15 2018, a Union County sheriff's deputy and a Georgia State Patrol trooper responded to a single vehicle wreck in Union County and discovered that a truck driven by Garrison had crashed into a utility pole, snapped the pole in half, and come to rest on top of the broken pole. While talking with Garrison, the trooper smelled alcohol coming from Garrison's breath. Garrison initially denied drinking in the past 24 hours, but later admitted to drinking the night before and to taking prescription medication.
The trooper then began a DUI investigation and had Garrison perform field sobriety tests. Garrison attempted to stand on one leg and "was wobbly." At trial, the trooper explained that he had completed a 24-credit hour class on field sobriety as well as a class in advanced roadside impairment tests. The trooper then defined the horizontal gaze nystagmus (HGN) test for the jury, which shows an involuntary jerking of the eyes in impaired persons, and described his standard procedure for conducting the test which he estimated he had performed between 500 and 800 times.
The trooper testified that Garrison showed six out of six clues, which indicated that she was impaired. At trial, Garrison's objection that the State had not properly established the proper foundation to admit the trooper's testimony regarding the HGN test was overruled.
The trooper then placed Garrison under arrest for DUI and read her Georgia's implied consent notice, which included a request that she take a blood test. Garrison refused and became argumentative. Garrison was arrested for DUI less safe, failure to maintain lane, and violation of tire requirements, and the State filed an accusation charging Garrison with these offenses on May 29, 2019.
More than two years after the incident, on January 12, 2021, the State filed an amended accusation charging Garrison with DUI (less safe) (combined influence) (OCGA § 40-6-391 (a) (4)), DUI (less safe) (alcohol) (OCGA § 40-6-391 (a) (1)), failure to maintain lane, and improper tires. Garrison did not file a pre-trial demurrer objecting to the amended accusation. After a jury trial in August 2022, Garrison was found guilty on all counts. Garrison filed a motion in arrest of judgment that same day, contending that the amended accusation was void because it was filed after the statute of limitation had expired. On August 31, 2022, the trial court held a hearing on Garrison's motion (of which no transcript appears in the record), and on September 1, the trial court issued an order denying the motion, stating that it was [1]Garrison then filed a notice of appeal.[2]
1. Garrison argues that the trial court erred in denying her motion in arrest of judgment because the amended accusation substantially amended the original charges and was filed outside the two-year statute of limitation, and accordingly, the State was required to plead the COVID-19 tolling provision in its amended accusation and prove at trial that the tolling provision applied. We disagree.
"A motion in arrest asserts that the indictment contains a defect on its face affecting the substance and real merits of the offense charged and voiding the indictment, such as failure to charge a necessary element of a crime." (Citation omitted.) Pauley v. State, 355 Ga.App. 47, 56 (3) (842 S.E.2d 499) (2020). If it appears on the face of an indictment that the statute of limitation period has run, the indictment is subject to a motion for arrest of judgment. See State v. Barker, 277 Ga.App. 84, 87 (3) (625 S.E.2d 500) (2005).
(a) The amended accusation.
"A count contained in a subsequent indictment relates back to the date of the prior indictment for purposes of the statute of limitations if: (1) the prior indictment was timely; (2) the prior indictment is still pending; and (3) the later indictment does not broaden or otherwise substantially amend the original charges." State v. Outen, 296 Ga. 40, 45 (3) (764 S.E.2d 848) (2014). "[W]hether an amendment to an accusation or indictment after expiration of the statute of limitation broadens or substantially amends the original charge is undoubtedly an issue of law." Barghi v. State, 334 Ga.App. 409, 411 (1) (779 S.E.2d 373) (2015). In making this determination, "the court should consider whether the additional pleadings allege violations of a different statute, contain different elements, rely on different evidence, or expose the defendant to a potentially greater sentence." (Citation and punctuation omitted.) Outen, 296 Ga. at 46 (3).
Here, the original accusation was timely filed and charged Garrison with violating OCGA § 40-6-391 (a) (1) for driving under the influence of alcohol, OCGA § 40-6-48 for failure to maintain her lane, and OCGA § 40-8-74 for improper tires.
The amended accusation, which was filed more than two years after the incident,[3]alleged an additional violation of a different subsection of the DUI statute, OCGA § 40-6-391 (a) (4), for driving under the influence of alcohol and drugs (combined influence) and relied on different evidence (that Garrison was driving under the influence of prescription medication in addition to alcohol), and therefore substantially amended the prior accusation. Compare Barghi, 334 Ga.App. at 411412 (1) (). Therefore, the amended accusation did not relate back to the original accusation.
(b) The COVID-19 emergency orders. Garrison argues that because the original statute of limitations had expired when the State filed the amended accusation, the State was required to allege the COVID-19 "tolling provision" in each count of the accusation to show that the charged offenses were not time-barred. We disagree.
Statutes of limitation are "designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past." (Citation and punctuation omitted.) Riley v. State, 305 Ga. 163, 167 (3) (824 S.E.2d 249) (2019). Thus, Georgia courts have long held that "[i]n a criminal statute of limitation only an exception or condition contained within the statute will toll its operation[.]" Outen, 296 Ga. at 43 (2). For example, where the identity of a defendant is unknown, the statute of limitation is tolled until the State has probable cause to authorize the lawful arrest of that person for the crime charged. See Riley, 305 Ga. at 169 (3), citing OCGA §17-3-2 (2). In that instance, the State may file an amended accusation after the statute of limitations has expired, but "must specifically allege in each count of the indictment the applicable tolling provision or exception to the statute of limitation in order to show that the charged offense is not time-barred." (Citations omitted). Lynch v. State, 346 Ga.App. 849, 856 (3) (a) (i) (815 S.E.2d 340) (2018). According to our Supreme Court, the purpose of this rule is "to notify the defendant [so] that he may be prepared to meet all the allegations on the part of the State, at the trial." (Emphasis supplied.) McLane v. State, 4 Ga. 335, 341 (1848). Thus, "an exception to the statute of limitation is a 'material allegation' which must be alleged in the indictment."[4] Taylor v. State, 306 Ga. 277, 286 (3) (b) (830 S.E.2d 90) (2019), quoting McLane, 4 Ga. at 342.
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