Under Jackson v. Virginia, the Appellate Court does not weigh evidence and construes the evidence in the light most favorable to the verdict. Jones was observed driving without a seat belt on July 4th, 2012. His speech was slurred. His movements were lethargic. The Officer had previously observed Jones when he was sober. Jones admitted to smoking synthetic marijuana and taking prescription Thorazine. The DUI Officer performed field tests including the HGN test 6/6 clues, VGN was present, 7/8 clues on the walk and turn test and 2/4 clues on the one leg stand. Jones’s pulse was rapid and he was sweating profusely. He sense of time was fast and he showed eyelid tremors. He also was swaying.
Less Safe driving has three elements: (1) driving, (2) under the influence of alcohol or drugs, (3) to the extent it is less safe to drive. Lee v. State, 280 Ga. App. 706, 707 (2006). The State is not required to show that the Defendant actually drove less safe. Yglesia v. State, 288 Ga. App. 217, 653 S.E.2d 823 ( 2007). There was ample evidence that Jones was impaired. Further, the State does not have to prove that Jones consumed an Illegal drug. Although the drug in the synthetic marijuana was not identified, the Court of Appeals found Jones had ingested a psychoactive drug as well as his prescription Thorazine. The jury is also authorized to find the Defendant guilty of being less safe to drive from a drug not listed or specified in the criminal accusation. See, Rivera v. State, 309 Ga. App. 544, 545, 710 SE2d 694 (2011)(This case never said that if simply found Defendant guilty of dui less for two of the three drugs listed on the blood test. This case does not stand for the proposition that you can be convicted of a drug DUI from a drug not listed in the accusation.)
Count One accused Jones of committing the offense of driving under the influence of drugs to the extent it was less safe to drive because he “did drive a moving vehicle, while under the influence of a drug, to wit: synthetic marijuana, to the extent that it was less safe for him to drive.” The Court of Appeals found that in synthetic marijuana cases a specific compound does not have to be listed in the accusation or charging document as it is a category of drugs where plant material is sprayed with some unknown chemical. Further, the Court of Appeals reasoned that there was evidence that Jones was also under the influence of the drug Thorazine which was not listed in accusation. Therefore, there was no fatal variance. The Court of Appeals holding that in a dui less safe drug case that accusation does not need to specify a particular drug.
This is an astounding departure and not authorized under the case precedent of Rivera, supra. In the first instance, the term “drug” is not defined in the Georgia Code. However, the term drug has been defined in Georgia case precedent. In Guest v. Horace Mann Insurance Company, 168 Ga. App. 714, 310 S.E.2d 241 (1983), drug was defined broadly as including illegal narcotics, legal regulated narcotics and over the counter medicines. The Appellate Court in Mann, supra, reasoned, “Webster’s Third New International Dictionary defines ‘drug’ as ‘a substance used as a medicine or in making medications for internal or external use … a substance intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animal. . . .’” Id at 715-176. The Mann Court further found, “Black’s Law Dictionary (4th ed.) defines ‘drug’ as the ‘general name of substances used in medicine; any substance, vegetable, animal, or mineral, used in the composition or preparation of medicines; any substance used as a medicine.’” The latter definition was adopted by the Georgia Court of Appeals in Shawver v. State, 103 Ga. App. 1 ,18 SE2d 202(1961). According to Drugs.com, synthetic marijuana or cannabinoids, the chemicals used in synthetic marijuana have a high potential for abuse and no medical benefit. With this understanding it would defy reason to classify synthetic marijuana as a drug. It is important to note that after this case, certain chemicial forms of synthetic marijuana were legislatively defined as a controlled substance under Georgia law. However, in the case at bar, the Court of Appeals seems to be taking the stance that because the Defendant admitted to smoking spice or synthetic marijuana and the Police Officer testified that Synthetic Marijuana is a broad class of drug that is enough proof for the statute. Synthetic marijuana undefined in the Georgia Code would probably be more appropriately defined as a “toxic vapor” under the O.G.C.A. 40-6-391(a)(3) rather than a “drug” under (a)(2).
This interpretation is problematic in three ways:
(1) It renders the DUI drugs less safe provisions under OCGA 40-6-391(a)(2) constitutionally vague as it requires the testimony of a police officer trained in drug recognition that synthetic marijuana is a category of psychotropic drugs. A a law is unconstitutionally vague if it “impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications.” Satterfield v. State, 260 Ga. 427, 395 S.E.2d 816 (1990). The language of a criminal statute “cannot be so ambiguous as to allow the determination of whether a law has been broken to depend upon the `subjective opinions of complaining citizens and police officials,’” Dupres v. City of Newport, RI, 978 F. Supp. 429 (1997).
(2) The police officer by testifying that Spice or Synthetic Marijuana is a drug is testifying to the ultimate issue in violation of OCGA 24-4-704(b). OCGA 24-4-704(b) provides, “No expert witness testifying with respect to the mental state or condition of an accused in a criminal proceeding shall state an opinion or inference as to whether the accused did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.” Less safe as the result of drugs is a condition of the Defendant.
(3) Finally, the Court of Appeals interpretation is impermissibly burden-shifting in that it forces the defendant to prove that he was not less safe as the result of a drug violating his due process and equal protection rights under the Constitution. As the Georgia Supreme Court held in State v. Moore, 237 Ga. 269, 227 S.E.2d 241 (1976), charges which place any burden of persuasion upon the defendant in criminal cases shall not be given and such charges will be deemed erroneous and subject to reversal, absent harmless error and invited error.
The allegata simply does not meet the probata in this case in my humble opinion. If the opinion stands it is little more than judicial legislation. Hopefully, the Defendant will petition for certiorari to the Georgia Supreme Court for clarity on this issue.
-Author: George Creal