Dаvid Brian Striplin appeals his conviction following a jury trial for driving under the influence of alcohol (less safe) and failure to maintain lane, asserting in his sоle enumeration of error that the accusation charging him with DUI (less safe) was fatally flawed. For the reasons that follow, we affirm.
*93 The record reflects that on the evening of August 16, 2003, Striplin drove his car across the oncoming lane of traffic, off the road, and head-on into a tree. Striplin, then 19 yеars old, was alone in the car and was injured in the crash. At trial, the responding officer testified that he observed that Striplin’s breath smelled of an alcoholic beverage. Based on his experience as a police officer making DUI arrests, the officer determined that Striplin was under the influence of alcohol to the extent that he was a less safe driver. The officer placed Striplin under arrest for DUI and read to him the implied consent notice for suspects under 21. Striplin agreed to submit to a blood test, which revealed a blood alcohol level of 0.133 grams.
Subsequently, on December 15, 2004, Striplin was charged by accusation with one count of DUI under age 21 per se 1 and one count of failure to maintain lane. 2 Striplin filed general and special demurrers to thesе charges on March 21, 2005. On May 11, 2005, an amended accusation was filed against Striplin, which added an additional count, alleging DUI (less safe). 3 On May 26, 2005, a recklеss driving count was added to the accusation. 4
Immediately prior to trial, the trial court excluded the results of Striplin’s blood test, and the DUI under 21 per se charge was dismissed. The trial proceeded before a jury on the DUI (less safe), reckless driving, and failure to maintain lane counts. The judge granted Striplin’s mоtion for a directed verdict on the reckless driving charge, and the jury was sent out to begin their deliberations on the DUI (less safe) and failure to maintain lane counts. Striplin’s counsel then raised his challenge to the second count of the amended accusation, which read:
COUNT 2:1, Carmen D. Smith, as Solicitоr General for the County of Fulton, State of Georgia, in the name and on behalf of the citizens of Georgia, do hereby charge and accuse DAVID B. STRIPLIN with the offense of DUI UNDERAGE 21, a misdemeanor for that said accused in the County of Fulton, State of Georgia, on the 16th day of August, 2003, did while under the age of 21, drive a mоving vehicle and was in *94 actual physical control of a moving vehicle on Riverside Drive while under the influence of alcohol to the extent thаt it was less safe for the defendant to drive, contrary to the laws of this State, the good order, peace and dignity thereof.
The trial judge ruled that the language in Count 2 regarding “DUI UNDERAGE 21” was mere surplusage and he redacted the count to eliminate any reference to “under age 21.” The judge then cаlled the jury back and re-charged them as follows:
I caution you that under the DUI charge, it says DUI under age 21. This language is mere surplusage in this case and yоu should treat this case no differently, regardless of the age of the Defendant. The fact that he’s under 21 as it relates to this charge has no bearing at all. The burden is the same and the proof is the same for under 21 or over 21— So please disregard under the age of 21 because that is mere surplus-аge and it should not be in this charge.
The redacted accusation was then sent in with the jury. The jury later found Striplin guilty of DUI (less safe) and failure to maintain lane.
On аppeal, Striplin argues that the accusation charging him with DUI (less safe) was subject to demurrer because of the language it contained regarding “under age 21.” In State v. Eubanks, 5 the Supreme Court noted that
an inconsistency between the denomination and the allegations in the indictment is an imperfection, but is one that is subject to a harmlеss error test on appeal; and ... a defendant who was not at all misled to his prejudice by any imperfection in the indictment cannot obtain rеversal of his conviction on this ground. 6
Thus, “[i]t is immaterial what the offense is called, if the averments of the presentment are such as to describe an оffense against the laws of the state.” 7
*95 It is well settled that “the purpose of the indictment is to allow defendant to prepare his defense intelligently and to protect him from double jeopardy.” 8 The record in the case before us is clear that Striplin understood the charge against him as driving undеr the influence of alcohol to the extent he was less safe to drive, in violation of OCGA§ 40-6-391 (a) (1). The second count of the accusation against Striplin erroneously included surplus language, as the state conceded in its brief. However, the surplus language regarding “DUI UNDER AGE 21” does not render the accusation void, because the remaining language accurately describes a violation of OCGA § 40-6-391 (a) (1). Although “under 21” is not an element of the offense оf driving under the influence (less safe),
its inclusion was mere surplusage, and can be entirely omitted without affecting the charge and without detriment to the aсcusation. Mere surplusage will not vitiate an indictment, and need not be established in proof. The material facts which constitute the offense сharged must be stated and they must be proved in evidence. But allegations not essential to such purpose, which might be entirely omitted without affecting the charge and without detriment to the indictment, are considered as mere surplusage, and may be disregarded in evidence. 9
The accusation is suffiсient where the defendant could not admit the charges made and still be innocent. 10 Here, Striplin could not admit the charges made — driving under the influence of alcohol to the extent that it was less safe for him to drive — and still be innocent of an offense under OCGA § 40-6-391 (a) (1).
We conclude that the language in thе second count of the accusation concerning DUI under age 21 was mere surplusage and was not essential to proving the crime alleged in the remainder of the count. 11 Therefore, the trial court did not err in denying Striplin’s demurrer to this count of the accusation.
Judgment affirmed.
Notes
See OCGA§ 40-6-391 (k) (1) (“[a] person under the age of 21 shall not drive or be in actual physical control of any moving vehicle while the person’s alcohol concentration is 0.02 grams or more at any time within three hours after such driving or being in physical cоntrol from alcohol consumed before such driving or being in actual physical control ended”).
See OCGA§ 40-6-48.
See OCGA§ 40-6-391 (a) (1) (“[a] person shall not drive or be in aсtual physical control of any moving vehicle while... [u]nder the influence of alcohol to the extent that it is less safe for the person to drive”).
See OCGAS 40-6-390.
Id. at 484 (indictment misnaming crime as theft by deception was not void where acts alleged constituted theft by conversion); accord
Frost v. State,
(Citations and punctuation omitted.)
Eubanks,
supra; accord
Nye v. State,
(Citations omitted.)
Eubanks,
supra at 484-485; accord
Dowdell v. State,
(Citation omitted.)
Broadnax-Woodland v. State,
Stinson v. State,
Roseberry, supra.