Peters v. State, 69987

• Decision Date: 12 July 1985
• Docket Number: No. 69987,69987
• Citation: 333 S.E.2d 436,175 Ga.App. 463
• Parties: PETERS v. The STATE.
• Court: Georgia Court of Appeals

Page 436

333 S.E.2d 436

175 Ga.App. 463

PETERS v. The STATE.

No. 69987.

Court of Appeals of Georgia.

July 12, 1985.

Howard Tate Scott, Athens, for appellant.

Ken Stula, Sol., for appellee.

POPE, Judge.

After a trial by jury, appellant was convicted of driving under the influence of alcohol and improper driving on a roadway. See OCGA §§ 40-6-391 and 40-6-48. The State presented evidence to show that shortly after midnight on February 3, 1984 an officer of the Athens Police Department heard tires squealing and a loud crash while he was on patrol. When he arrived at the scene, he found a small pickup truck which had hit a telephone pole and had come to rest partially on a sidewalk. Appellant was found "crawling around in the rocks" at the rear of the truck. An ambulance was summoned for appellant as well as his passengers. Appellant had a very strong odor of an intoxicating beverage, was verbally abusive and uncooperative, and, after his arrival at the hospital emergency room, urinated on the floor. After being read the Implied Consent Warning, appellant consented to a blood test which determined his blood-alcohol content to be 0.23 percent.

1. The accusation under which appellant was tried contained two counts. Count I only is at issue in this case. In Count I, appellant was charged with driving or being in actual physical control of a moving vehicle "while under the influence of alcohol or drugs or while there was 0.12 percent or more by weight of alcohol in his blood in violation of OCGA § 40-6-391." (Emphasis supplied.) OCGA § 40-6-391(a) makes it a criminal offense to drive or be in actual physical control of any moving vehicle while: "(1) Under the influence of alcohol; (2) Under the influence of any drug to a degree which renders him incapable of driving safely; (3) Under the combined influence of alcohol and any drug to a degree which renders him incapable of driving safely; or (4) There is 0.12 percent or more by weight of alcohol in his blood." (Emphasis supplied.) Although subsection (a)(1) does not state such, the requirement of proof that the driver be under the influence of alcohol to a degree which renders him less safe or incapable of safely driving has been judicially imported. See Cargile v. State, 244 Ga. 871(1), 262 S.E.2d 87 (1979); Jones v. State, 168 Ga.App. 106(1), 308 S.E.2d 209 (1983). Subsection (a)(4) was added to the statute effective September 1, 1983. See Ga.L.1983, p. 1000 §§ 12, 18. Impaired driving ability is not an element necessary to constitute the crime established in subsection (a)(4). Lester v. State, 253 Ga. 235(2), 320 S.E.2d 142 (1984). Therefore, proof of 0.12 percent blood-alcohol content would itself support a verdict if a driver was charged with violating OCGA § 40-6-391(a)(4), but if the charge was violation of subsection (a)(1), the 0.12 percent content would merely be proof that the person was under the influence of alcohol and the State would additionally have to prove that the driver's ingestion of alcohol rendered him incapable of safely driving.

Before the addition of subsection (a)(4) in 1983, the code section described one crime which could be committed by three different ingestions. See Vann v. State, 153 Ga.App. 710(2), 266 S.E.2d 349 (1980). The crime was driving (or being in actual physical control of) a motor vehicle when one's ability to safely drive was impaired by the influence of certain substances. The offending substances were alcohol and any drug, acting either alone or together. As recognized in Vann v. State, supra, the statute contained several disjunctive ways or methods that the crime could be committed, and proof of any one would be sufficient to constitute the crime where the accusation was phrased conjunctively. See Leverenz v. State, 140 Ga.App. 632(1), 231 S.E.2d 513 (1976).

When subsection (a)(4) was enacted in 1983, the legislature recognized it as a different crime but placed it at the end of the existing statute. In the title to the act, it refers repeatedly to "the offense of driving under the influence of alcohol or drugs" and it states that part of the purpose of the act is "to provide that it shall be unlawful to be in actual control of any moving vehicle with 0.12 percent or more by weight of alcohol in the blood; to provide penalties for convictions of that offense; ... to change certain references to the offense of driving under the influence of alcohol or drugs to include the offense of being in actual control of any moving vehicle with 0.12 percent or more by weight of alcohol in the blood...." Ga.Laws 1983, p. 1000, 1001-1002.

Thus, although the two crimes are listed in one code section, the differing elements make them different crimes albeit all targeted at a person's condition while driving. Just because they are contained as a matter of organizational format in one code section does not make them one crime. Berry v. State, 124 Ga. 825, 826, 53 S.E. 316 (1906), involves a consideration of duplicity and the court recognized that the one section of the Penal Code in issue there "embraces two offenses." Thus, whether the section describes one or more crimes is a matter of substance and not form. Here the crime is not driving or being in control, or even driving under the influence, but doing so only in one of four conditions--under one of three influences or with a certain percentage of blood-alcohol content. As the court said in Lester v. State, supra 253 Ga. at 237, 320 S.E.2d 142: "Subsection (a)(4) defines a specific act, driving while having a blood-alcohol count of at least .12%, as criminal."

In this case, appellant was charged with two offenses in one count. The crime of driving under the influence of alcohol or drugs rendering the driver incapable of safely driving and the crime of driving with 0.12 percent blood-alcohol content were both charged in Count I in the alternative. The trial court charged on both, including alternative means of alcohol and drugs (and gratuitously added the third alternative), and the jury returned a verdict of simply "guilty" on this count. There was no evidence whatsoever of drug influence or combined drug/alcohol influence, so we must assume that the jury found appellant guilty of either (a)(1) or (a)(4) or both. In either event, he did not, and does not, complain, nor does he contend that the allegata and the probata do not match.

An accusation is duplicitous if it joins "separate and distinct offenses in one and the same count." Black's Law Dictionary 452 (5th ed. 1979). "Duplicity" is "[t]he technical fault in ... pleading of uniting ... two or more offenses in the same count of an indictment...." Id. Appellant could have demurred. See Williams v. State, 60 Ga. 88(2) (1878). See generally OCGA § 17-7-111; 7 EGL Criminal Procedure, §§ 40, 42 (1976 Rev.) The accusation was couched disjunctively and not conjunctively, by the use of "or" instead of "and." See Vann v. State, supra. A special demurrer challenges the sufficiency of the form of the indictment or accusation. See State v. Greene, 171 Ga.App. 329, 320 S.E.2d 183 (1984). If not raised, defects of form are waived. Hopper v. Hampton, 244 Ga. 361, 260 S.E.2d 73 (1979); Drinkard v. State, 155 Ga.App. 638(1), 271 S.E.2d 889 (1980). Appellant did not demur and does not now complain of the duplicity here. In addition, when the jury verdict was announced by appellant's counsel as "guilty on Count One and guilty on Count Two," he answered "no" to the court's question regarding whether he objected to the form of the verdict.

Duplicity is what has occurred here, and that is what at bottom prompts us to enter into a discussion in Division 2 of the rebuttable presumption charge which, in our view, would only be applicable in a charge and conviction of section (a)(1) or, in other cases, (a)(2) or (a)(3). It is irrelevant when the charge and conviction is for a violation of section (a)(4), as that section does not require proof of a person's driving capability and the degree of influence of a certain substance upon it. The evidence here was unrebutted that appellant's blood-alcohol content was 0.23 percent. The evidence also was sufficient to support a verdict which found that appellant's driving capability was criminally influenced. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Edwards v. State, 169 Ga.App. 958(1), 315 S.E.2d 675 (1984). The element really in contention, i.e., whether appellant was driving or in actual physical control of the vehicle, is common to both crimes and thus the jury's general verdict shows that this fact was found. As recognized in Lampkin v. State, 87 Ga. 516, 523, 13 S.E. 523 (1891), where the court discussed the demurrable error of form in a charge of two offenses in one count, "the jury may as easily understand the nature of each as if they were set forth in separate counts."

The punishment for both crimes here is the same, (see OCGA § 40-6-391(c)-(g)), and only one punishment was given. It being fully sustainable as to a violation of subsection (a)(4), which did not involve the rebuttable presumption matter applying only to (a)(1), the question raised with respect to the presumption stated in OCGA § 40-6-392(b)(3) is not dispositive of this appeal. Whether that charge was error or not is of no harm to appellant because he received only one punishment for a violation of OCGA § 40-6-391(a). That punishment stands, for "point-twelve driving," beyond reach of a challenge to the debated jury instruction.

2. Appellant's sole enumeration of error challenges the trial court's charge to the jury on the presumptions created by OCGA § 40-6-392(b), contending as a result an unconstitutional shifting of the burden of proof and a denial of due process. Because counsel for appellant was never asked if he had any objection to the main charge as given, failure to raise this issue in the trial court has not waived appellate review. We must entertain appellant's...