United States District Court, S.D. Georgia, Augusta Division
K. EPPS UNITED STAINS MAGISTRATE JUDGE.
the Court is Defendant's motion to dismiss, wherein he
argues the current prosecution against him violates the
Double Jeopardy Clause of the Fifth Amendment. For the
reasons set forth below, the Court DENIES
Defendant's motion to dismiss. (Doc. no. 19.)
One of the information charges Defendant with DUI on a
Military Reservation, in violation of 18 U.S.C. §§
7, 13 and O.C.G.A. § 40-6-391(a)(1), and alleges in
support of this charge as follows:
On or about the 9th day of February, 2017, in the Southern
District of Georgia, the defendant, STANLEY SPURLEY, at a
place within the special maritime and territorial
jurisdiction of the United States, namely, the Fort Gordon
Military Reservation, on land acquired for the use of the
United States and under its jurisdiction, was unlawfully
driving a moving vehicle while under the influence of alcohol
to the extent that it was less safe for him to drive, from
alcohol consumed before such driving ended, in violation of
Title 18, United States Code, Sections 7 and 13 and the
Official Code of Georgia Annotated, Section 40-6-391(a)(1).
(Doc. no 1, pp. 1-2.) Defendant claims he was also issued a
citation for an open container violation arising out of the
same occurrence and he paid the fine for the open container
violation on March 30, 2017. (Doc. no. 19, p. 1.) Defendant
entered a not guilty plea before the Court on the DUI charge
on July 14, 2017. (Doc. no. 15.) In his motion to dismiss,
Defendant argues prosecution of the DUI charge following
resolution of the open container charge violates the Double
Jeopardy Clause of the Fifth Amendment because the charges
originated from the same transaction or occurrence. (Doc. no.
19, pp. 1-2.) The Government contends there is no Double
Jeopardy violation because each charged offense contains
essential elements not included in the other charged offense.
(Doc. no. 20, p. 4.)
Defendant's Motion To Dismiss Fails To Comply With Local
Criminal Rule 12.1
Criminal Rule 12.1 requires every motion filed in a criminal
proceeding to be “accompanied by a memorandum of law
citing supporting authorities, ” and every factual
allegation “be supported by a citation to the pertinent
page in the existing record . . . .” LCrR 12.1, SDGa.
Defendant's motion contains neither citation to legal
authority nor citation to the record for the facts set forth
therein. (See doc. no. 19.) The burden is on
Defendant to allege facts that would, if proven true, entitle
him to relief. United States v. Lewis, 40 F.3d 1325,
1332 (1st Cir. 1994). Generally, where a proper motion is not
filed, the Court treats it as a nullity.
The Subsequent Prosecution of the DUI Charge Does Not Violate
the Double Jeopardy Clause
the motion contained the information required by Rule 12.1,
Defendant's motion to dismiss is without merit because
prosecution of the DUI charge does not violate the Double
Jeopardy Clause. The Double Jeopardy Clause of the Fifth
Amendment states “[n]o person shall . . . be subject
for the same offence to be twice put in jeopardy of life or
limb . . . .” U.S. Const. amend. V, cl. 2.
“[W]here the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to
be applied to determine whether there are two offenses or
only one, is whether each provision requires proof a fact
which the other does not.” Blockburger v. United
States, 284 U.S. 299, 304 (1932); see also United
States v. Hassoun, 476 F.3d 1181, 1185 (11th Cir. 2007).
Where a charged crime contains elements which the other does
not, the Double Jeopardy Clause is not violated, even if both
charged crimes arise out of the same transaction or
occurrence. United States v. Dixon, 509 U.S. 688,
701-03 (1993); United States v. Dickerson, 567 F.
App'x 754, 756 (11th Cir. 2014).
there is no Double Jeopardy violation because the DUI charge
contains elements that the open container charge does not.
DUI requires a person to drive or be in physical control of a
moving vehicle while under the influence of alcohol to the
extent it is less safe for the person to drive. O.C.G.A.
§ 40-6-391(a)(1) (2017). An open container violation
requires a person to possess an open alcoholic beverage
container in the passenger area of a motor vehicle on the
roadway or shoulder of a public highway. O.C.G.A. §
40-6- 253(b)(1) (2017). While DUI requires the person charged
to be in control of the vehicle, an open container violation
does not. Likewise, an open container violation requires
possession of an open alcoholic beverage container, while DUI
does not. Therefore, the charged crimes each contain elements
the other does not, and the DUI charge does not violate the
Double Jeopardy Clause.
reasons set forth above, the Court DENIES