As a seasoned DUI lawyer serving Hall County, Georgia, I keep a close eye on court decisions that
impact traffic-related charges, especially those involving fleeing and eluding a police officer. The recent Court of Appeals of Georgia decision in Awui v. The State (A25A0675, decided March 26, 2025) offers valuable lessons for drivers facing similar charges. Although Kodzo Caleb Awui was acquitted of DUI in this case, his convictions for felony fleeing and eluding, reckless driving, speeding, and failure to maintain lane highlight the complexities of defending against such charges. In this blog post, I’ll summarize the case, analyze the court’s rulings, and explain what it means for drivers in Hall County. If you’re facing charges related to a traffic stop, this case underscores the importance of working with an experienced attorney to protect your rights.
Case Overview: Awui v. The State
On June 14, 2023, a Hall County Sheriff’s Deputy clocked Kodzo Caleb Awui driving at 117 miles per hour in a 70-mile-per-hour zone on Interstate 985. The deputy activated his blue lights and pursued Awui for six miles, during which Awui turned off his headlights, drove off the shoulder three times, swerved between cars, and reached speeds of 120 miles per hour before crashing into another vehicle. The deputy testified that he attempted to activate his siren, but the knob got stuck, resulting in no audible signal. Awui’s vehicle lacked a rearview mirror, though it had side mirrors, according to a mechanic who testified for the defense.
Awui was charged with felony fleeing and eluding a police officer (OCGA § 40-6-395), reckless driving, speeding, and failure to maintain lane, along with DUI (less safe). The jury convicted him of all charges except the DUI count. Awui appealed, arguing that the trial court erred by (1) denying his motion for a directed verdict on the fleeing and eluding charge due to a fatal variance between the indictment and the evidence, and (2) improperly instructing the jury. The Court of Appeals affirmed the convictions.
Key Legal Issues in Awui v. The State
This case centers on two main legal challenges raised by Awui:
- Fatal Variance Between Indictment and Evidence: Awui argued that the indictment for fleeing and eluding specified that he was given both an audible and visual signal (lights and sirens) to stop, but the evidence showed only a visual signal (blue lights) because the siren failed. He claimed this discrepancy warranted a directed verdict of acquittal.
- Jury Instruction Variance: Awui contended that the trial court’s jury instructions, which allowed conviction if the crime was committed in “any one of the ways charged” (visual or audible signal), improperly varied from the indictment’s specific allegation of both signals.
Fatal Variance Claim (Directed Verdict)
Awui’s motion for a directed verdict was based on the argument that the State failed to prove the audible signal element of the fleeing and eluding charge, as alleged in the indictment. The statute, OCGA § 40-6-395(a), defines fleeing and eluding as willfully failing to stop when given a visual or an audible signal, which can include emergency lights, sirens, hand signals, or voice commands. The offense becomes a felony if the driver exceeds the speed limit by 20 miles per hour or more, which Awui did.
The Court of Appeals rejected Awui’s fatal variance claim, finding that the terms “visual” and “audible” in the indictment were descriptive, not material elements of the offense. The court emphasized that under modern Georgia law, the fatal variance rule focuses on materiality (DePalma v. State, 225 Ga. 465, 1969). A variance is fatal only if it (1) fails to inform the defendant of the charges, hindering their defense, or (2) risks double jeopardy by not protecting against another prosecution for the same offense (Mathews v. State, 314 Ga. 360, 2022).
Here, the court found:
- The indictment sufficiently informed Awui of the charges, as the core offense—willfully fleeing a police officer’s signal to stop—was proven with overwhelming evidence (blue lights, marked vehicle, uniformed officer, and excessive speed).
- The lack of an audible signal did not affect Awui’s substantial rights, as the statute allows for either a visual or audible signal, and the visual signal (blue lights) was undisputed.
- The court disapproved Little v. State (202 Ga. App. 7, 1991) to the extent it held that “visual” and “audible” are material elements of the offense, aligning with a less technical application of the fatal variance rule (Fortner v. State, 350 Ga. App. 226, 2019).
Thus, the trial court did not err in denying Awui’s motion for a directed verdict.
Jury Instruction Challenge
Awui also argued that the trial court’s jury instruction created a variance by allowing conviction if the crime was committed in “any one of the ways charged” (visual or audible signal), despite the indictment specifying both signals. The court charged the jury with the language of OCGA § 40-6-395(a), which states that the signal can be visual or audible.
Because Awui did not object to the jury charge before deliberations, the Court of Appeals reviewed this claim for plain error only (OCGA § 17-8-58(b); Jivens v. State, 317 Ga. 859, 2023). However, the court found no error, plain or otherwise, due to its ruling on the fatal variance issue. Since the indictment’s specification of both signals was not material, the jury instruction aligning with the statute’s broader language (allowing either signal) was appropriate and did not mislead the jury or affect Awui’s rights (Palencia v. State, 359 Ga. App. 307, 2021).
Implications for Hall County Drivers
The Awui v. The State decision has several important takeaways for drivers in Hall County facing fleeing and eluding or related charges:
- Signals for Fleeing and Eluding: The court clarified that the specific type of signal (visual or audible) is not a material element of the offense under OCGA § 40-6-395. A visual signal alone, such as blue lights, is sufficient to support a conviction if other elements (uniformed officer, marked vehicle, willful fleeing) are met. This lowers the bar for the State to prove fleeing and eluding, even if an audible signal fails.
- Fatal Variance Rule: Georgia courts now apply a materiality-focused approach to fatal variance claims, meaning minor discrepancies between the indictment and evidence are unlikely to lead to acquittal unless they significantly impair the defendant’s ability to defend or risk double jeopardy.
- Jury Instructions: Jury instructions that align with the statute’s language, even if broader than the indictment, are generally permissible, especially if the variance is not material. However, failing to object to jury charges before deliberations limits appellate review to plain error, reducing the chances of a successful appeal.
- Defense Strategies: For fleeing and eluding charges, defenses should focus on whether the officer’s signal was clear, whether the defendant willfully fled, and whether the officer met the statutory requirements (uniform, badge, marked vehicle). Technical arguments about signal type are less likely to succeed.
How George Creal Can Help in Hall County
At George Creal, Attorney at Law, we understand the intricacies of traffic-related charges like fleeing and eluding, reckless driving, and speeding, especially in Hall County. While Awui was acquitted of DUI, his case shows how aggressive driving behavior during a traffic stop can lead to serious felony charges. If you’re facing similar charges, we can:
- Challenge the Evidence: We’ll examine whether the State can prove all elements of the offense, including whether the officer’s signal was clear and whether your actions were willful.
- Review the Indictment and Jury Instructions: We’ll ensure that the indictment and jury charges align with the evidence and the law, raising timely objections to preserve your appellate rights.
- Leverage Video and Witness Testimony: We’ll obtain dashcam or bodycam footage and explore witness testimony (like the mechanic in Awui’s case) to build a strong defense.
- Fight for Reduced Charges or Dismissal: We’ll work to mitigate the consequences, potentially negotiating for lesser charges or dismissal if procedural errors exist.
With over 25 years of experience defending traffic and DUI cases in Hall County, I’m committed to protecting your rights and achieving the best possible outcome. If you’re facing charges, contact us today for a free consultation.
The Awui v. The State case reinforces that the specific type of signal (visual or audible) is not a material element of fleeing and eluding under Georgia law, making it harder to challenge such charges based on technical variances. For Hall County drivers, this means law enforcement can secure a conviction with a visual signal alone, provided other statutory requirements are met. However, every case has unique aspects, and an experienced attorney can identify defenses or procedural errors that may lead to a better outcome.
Contact George Creal for Expert DUI Defense
If you’re dealing with fleeing and eluding or other traffic-related charges in Hall County, don’t face the legal system alone. Contact George Creal, Attorney at Law, at (404) 333-0706 or visit www.georgecreal.com to schedule your consultation. Let us fight for your rights and help you move forward.
Disclaimer
This blog post summarizes the Atlanta Municipal Court DUI Division’s SOPs for informational purposes. For legal advice tailored to your case, consult directly with George Creal.