State v. Bangley

Blackburn, Judge. The State appeals the trial court’s grant of Bangley’s motion to dismiss the portion of the State’s accusation which alleged that Bangley was guilty of a high and aggravated misdemeanor. On December 17, 1991, Bangley was arrested and charged with driving under the influence of alcohol, obstruction, no proof of insurance, and driving on the wrong side of the road. On May 4, 1992, the State drew an accusation charging Bangley with violating OCGA § 40-6-391, and other violations, including alleging the commission of a high and aggravated misdemeanor pursuant to OCGA § 40-6-391 (c). The State asserted that the basis for its allegation of a high and aggravated misdemeanor was Bangley’s prior DUI convictions on June 8, 1987 and October 30, 1985. Bangley filed his motion to dismiss alleging that the State lacked statutory authority to charge a high and aggravated misdemeanor because both his previous DUI convictions were not within five years of the present charge. The trial court granted Bangley’s motion and the State appeals. In its sole enumeration of error, the State asserts that the trial court erred in dismissing the State’s accusation as drawn. The State argues that OCGA § 40-6-391 (c) clearly states that a person convicted of a third or subsequent conviction shall be guilty of a high and aggravated misdemeanor and that Bangley was convicted of two prior DUI offenses. Therefore, the State concludes that its accusation was properly drawn. However, the statute is not so clear as to require the State’s interpretation. OCGA § 40-6-391 provides, in pertinent part, that “(c) [e]very person convicted of violating this Code section shall, upon a first or second conviction thereof, be guilty of a misdemeanor and, upon a third or subsequent conviction thereof, be guilty of a high and aggravated misdemeanor and shall be punished as follows: ... (3) [f]or the third or subsequent conviction within a five-year period of time, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest for which a conviction is obtained or a plea of nolo contendere is accepted. ...” The State argues that if the legislature had intended to limit the application of the words “upon a third or subsequent conviction thereof” to those convictions within five years, “they would have said so.” However, this argument completely overlooks the fact that the [209] legislature did “say so.” In paragraph (3) of subsection (c), the legislature used the words “within a five-year period of time” to modify the meaning of “the third or subsequent conviction.” Furthermore, subsection (c) of OCGA § 40-6-391 contains one long sentence which encompasses paragraph (3). Therefore, OCGA § 40-6-391 (c) should be read and interpreted in its entirety, rather than in fragments. “Any criminal law should be plain and unambiguous and not dependent upon the current conflicting views of appellate judges.” Mitchell v. State, 239 Ga. 3 (235 SE2d 509) (1977). Additionally, “ ‘[i]t has always been the law that criminal statutes must be strictly construed against the state. McAllister v. State, 122 Ga. 744 (50 SE 921) (1905).’ ” Bankston v. State, 258 Ga. 188, 190 (367 SE2d 36) (1988). Finally, “where a statute imposing the penalty for commission of a criminal offense is capable of two constructions, such statute should be construed as imposing the lesser penalty.” Id. These rules of statutory interpretation in criminal matters justify the trial court’s dismissal of the portion of the State’s accusation which improperly charged Bangley with a high and aggravated misdemeanor as it was uncontroverted that Bangley’s first arrest for DUI was not within five years of his arrest for his third DUI. Judgment affirmed. Johnson and Smith, JJ., concur specially.