Pullen v. State, A91A0276
| Decision Date | 05 June 1991 |
| Docket Number | No. A91A0276,A91A0276 |
| Citation | 406 S.E.2d 283,199 Ga.App. 881 |
| Parties | PULLEN v. The STATE. |
| Court | Georgia Court of Appeals |
Duffey & Duffey, Harl C. Duffey III, Rome, for appellant.
William A. Foster III, Dist. Atty., Donald N. Wilson, Asst. Dist. Atty., for appellee.
Defendant Duane L. Pullen was charged by accusation with the offense of operating a vehicle while under the influence of alcohol and drugs. Defendant waived formal arraignment and pleaded not guilty. He waived trial by jury and the case proceeded to a bench trial. During trial defendant made an oral motion to quash the accusation on the ground it did not set forth a crime. The trial judge completed the trial of the case but permitted the parties to submit briefs addressing defendant's motion to quash. The trial court ultimately denied the motion and found defendant guilty. Defendant appeals.
The accusation charges defendant with the offense of operating a vehicle while under the influence of alcohol and drugs "for that the said accused ... did ... unlawfully drive and be in [sic] actual physical control of a motor vehicle upon and along that certain public road, street and highway known as U.S. Highway 278 West, contrary to the laws of this State, the good order, peace and dignity thereof." Defendant is correct in arguing that the accusation does not charge him with any offense. Except for alleging he was in control of a vehicle, it merely states the conclusion that he was driving unlawfully without alleging any of the other essential elements of driving under the influence as set forth in OCGA § 40-6-391(a). Because defendant could admit the accusation and still be innocent of the offense charged, the accusation is defective. See Brooks v. State, 141 Ga.App. 725(1), 234 S.E.2d 541 (1977); Reliford v. State, 101 Ga.App. 244(1), 113 S.E.2d 473 (1960). The trial judge nevertheless denied the motion to quash on the ground that it was made untimely.
Rule 31.1 of the Uniform Superior Court Rules does require all motions and demurrers to be made and filed at or before the time of arraignment unless the time is extended in writing by the judge. In addition, OCGA § 17-7-111 requires such motions to be made in writing. These rules, however, do not preclude an oral objection to the sufficiency of an indictment or accusation at any time during trial if it is so defective that judgment upon it would be arrested. " ...
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McKay v. State, A98A0902.
...general demurrer can be asserted anytime during the trial. Gilmore v. State, 118 Ga. 299-300(1), 45 S.E. 226 (1903); Pullen v. State, 199 Ga.App. 881, 406 S.E.2d 283 (1991). Compare Perkins v. State, 151 Ga.App. 199, 206(7), 259 S.E.2d 193 (1979) (motion to quash "because of objection to fo......
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Spence v. State, No. A03A1047.
...not be guilty of any crime and the accusation was fatally defective. See Ross, 235 Ga.App. at 9, 508 S.E.2d 424; Pullen v. State, 199 Ga.App. 881, 406 S.E.2d 283 (1991). See also D'Auria v. State, 270 Ga. 499, 500(1), 512 S.E.2d 266 Although the trial court acknowledged that the accusation ......
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Page v. State
...that defendant drove "in reckless disregard for the safety of persons or property," OCGA § 40-6-390(a)). See also Pullen v. State, 199 Ga.App. 881, 406 S.E.2d 283 (1991) (accusation charging defendant with DUI because he "did unlawfully drive and be in (sic) actual physical control of a mot......
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State v. Brown
...and should be granted if a defendant can admit the accusation and still be innocent of the offense charged. Pullen v. State, 199 Ga.App. 881, 882, 406 S.E.2d 283 (1991); Wilson v. State, 211 Ga.App. 486, 489(4), 439 S.E.2d 701 (1993). The issue here, then, is whether Brown could admit that ......