Georgia DUI Cases of Note

  

Chandler v. State, A10A1604, Georgia Court of Appeals, August 4th, 2010, DUI appealed from Gwinnett State Court

Friday, July 30, 2010

Georgia criminal law prohibits multiple convictions or successive prosecutions for the same conduct under OCGA § 16-1-7 (b): "If the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution." Chandler argued that because the Gwinnett County Solicitor's Office prosecutes DUIs in both Gwinnett County State Court and Gwinnett County Recorders Court that knowledge of the resolution of the following too close should be implied to the prosecutors. The Georgia Court of Appeals disagreed and held where, the traffic citation was issued by a police officer, filed in recorder's court, and disposed of at the clerk's office without the intervention of a prosecuting officer or a judge there is no actual knowledge imputed to the prosecutor to successfully bar a DUI on double jeopardy grounds. It found that a double jeopardy claim can only succeed if the crimes are actually known and not constructively known to the prosecutor actually handling the claim. And you thought that was the end of the matter?

A week before, Nicely v. State, A10A1426, July 28, 2010 is decided a drug case from White County in Blairsville. Nicely was arrested for cocaine possession and driving on a suspended license in the midst of an illegal fishing investigation.  The Suspended license ticket was sent to Probate Court of White County where Nicely plead nolo contender.  The Trial Court denied the motion because there was no evidence that the Assistant District Attorney who took the suspended license plea did not know about the cocaine charge. The Court of Appeals reversed holding that double jeopardy bars multiple prosecutions where (1) several crimes arise from the same facts, (2) are known to the proper prosecuting officer at the time of the commencement of the prosecution, and (3) are within the jurisdiction of a single court. The issues of a single factual incident and both cases were in the jurisdiction of a single court was undisputed. The Court of Appeals held that because the District Attorney knew of Nicely's indictment by the Grand Jury at the time of the nolo plea in Probate Court as a matter of law that knowledge was imputed to the Assistant District Attorney who accepted the nolo plea to suspended license in the Probate Court.  

Does Nicely v. State sound suspiciously like the argument made by the Defense Attorney in Chandler? Since Chandler was a paid ticket and not a plea, the portion of the opinion about imputed knowledge and actual knowledge is not necessary to the decision and is dicta without presidential value.  Imputed knowledge seems to be the law of the land as long as you have an in court plea.  



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