Tomlin v. State

McMurray, Presiding Judge.

Defendant was tried by a jury on a two-count accusation. Count 1 charged defendant with driving while under the influence of alcohol. .See OCGA § 40-6-391 (a) (1). Count 2 charged that defendant did drive and was in actual physical control of a moving vehicle “[w]hile there was in his blood 0.12 percent or more by weight of alcohol.” See OCGA § 40-6-391 (a) (4). The same conduct formed the basis for both counts of the accusation. The jury returned verdicts of guilty under Count 1 and Count 2 of the accusation; however, the trial court sentenced defendant without…