State v. Tweedell, A93A0045
| Decision Date | 10 June 1993 |
| Docket Number | No. A93A0045,A93A0045 |
| Citation | 432 S.E.2d 619,209 Ga.App. 13 |
| Parties | The STATE v. TWEEDELL. |
| Court | Georgia Court of Appeals |
Keith C. Martin, Sol., Leigh A. Moore, Asst. Sol., for appellant.
John A. Tweedell, pro se.
John Allen Tweedell was charged by accusation with driving under the influence of alcohol to the extent it was less safe for him to drive. The trial court, sitting without a jury, found Tweedell guilty not of the crime charged in the accusation but of the offense of public drunkenness. The State appeals, contending that the court's judgment is void because public drunkenness is not a lesser included offense of driving under the influence of alcohol. 1
OCGA § 16-1-6 provides two alternative tests for determining whether one crime is included in another as a matter of fact or as a matter of law. Shuler v. State, 195 Ga.App. 849(1), 395 S.E.2d 26 (1990); Weaver v. State, 176 Ga.App. 639, 640-641(3), 337 S.E.2d 420 (1985). A crime is included in another as a matter of fact when it is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged; a crime is included in another as a matter of law when it differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission. OCGA § 16-1-6.
Public drunkenness requires proof that a person is and appears to be in an intoxicated condition, which is manifested by boisterousness, indecent condition or act, or by vulgar, profane, loud or unbecoming language. OCGA § 16-11-41(a). The offense of driving under the influence of alcohol to the extent it is less safe to drive does not require that any of these facts be alleged and proved. OCGA § 40-6-391(a)(1). Furthermore, the accusation in the instant case does not allege that Tweedell appeared to be in an intoxicated condition, made manifest by boisterousness, indecent condition or act, or by vulgar, profane, loud or unbecoming language. Public drunkenness therefore is not, as a matter of fact or law, a lesser included offense of driving under the influence of alcohol to the extent it is less safe to drive. See generally Cooney v. State, 205 Ga.App. 385, 386, 422 S.E.2d 286 (1992); Whiteley v. State, 188 Ga.App. 129, 132-133(5), 372 S.E.2d 296 (1988).
(Citations and punctuation omitted.) Bowers v. State, 177 Ga.App. 36, 36-37(1), 338 S.E.2d 457 (1985). Tweedell was charged by a narrowly drawn accusation with the specific crime of driving under the influence of alcohol to the extent it was less safe for him to drive. The judge did not have the...
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