                               THIRD DIVISION
                              ELLINGTON, P. J.,
                         DILLARD and MCFADDEN, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules/


                                                                       June 9, 2015




In the Court of Appeals of Georgia
 A15A1142. JONES v. THE STATE.

      ELLINGTON, Presiding Judge.

      A Hall County jury found Brandon Jones guilty beyond a reasonable doubt of

driving under the influence of a drug to the extent that it was less safe to drive,

OCGA § 40-6-391 (a) (2); driving with a suspended license, OCGA § 40-5-121 (a);

and failing to wear a seat belt, OCGA § 40-8-76.1 (b). Following the denial of his

motion for a new trial, Jones appeals, challenging the sufficiency of the evidence as

to Count 1 of the accusation, DUI. He also contends that Count 1 fails to charge him

with any offense under Georgia law. For the reasons explained below, we affirm.

      1. Jones contends that the only officer who observed him driving did not see

any unsafe driving. In addition, he contends that, to the extent there was evidence that

he was impaired to the extent he was a less safe driver, the evidence does not show
that the substance he ingested as “synthetic marijuana” had any effect on his ability

to drive. As a result, he contends, the evidence was insufficient to sustain his

conviction.

      On appeal from a criminal conviction, the appellate court

      view[s] the evidence in the light most favorable to the verdict[,] and an
      appellant no longer enjoys the presumption of innocence. [The appellate
      court] determines whether the evidence is sufficient under the standard
      of Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560)
      (1979), and does not weigh the evidence or determine witness
      credibility. Any conflicts or inconsistencies in the evidence are for the
      jury to resolve. As long as there is some competent evidence, even
      though contradicted, to support each fact necessary to make out the
      State’s case, [the appellate court] must uphold the jury’s verdict.


(Citations omitted.) Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004).

      Viewed in the light most favorable to the verdict, the record shows that, on July

4, 2012, a patrol officer observed Jones driving without a seat belt and initiated a

traffic stop. Jones told the patrol officer that he was wearing his seat belt, although

he was not; his speech was very slurred; and his movements were lethargic. A second

officer arrived to help with the stop. That officer had extensive training in detecting

impairment by alcohol and other drugs, including drugs that are classified as synthetic


                                          2
marijuana. In addition, that officer was personally acquainted with Jones and had had

the opportunity to observe Jones when he was sober. The second officer took over the

DUI investigation.

      The investigating officer observed that Jones was sweating heavily and

speaking in a jittery manner. The officer asked Jones what drugs he had been using,

and Jones responded that he had smoked synthetic marijuana and had taken his

prescription Thorazine. Jones agreed to take field sobriety tests. The officer

administered the horizontal gaze nystagmus test; that test specifies six possible clues

(three types of movement, observed in each eye), and the officer observed all six. The

officer testified that four or more clues indicates impairment. The officer tested for

vertical gaze nystagmus and observed that vertical gaze nystagmus was present,

which indicated that Jones had consumed a higher dose of an intoxicating drug than

he was accustomed to take. The officer administered the walk-and-turn test, observing

seven out of eight possible clues, and the one-leg-stand test, observing two out of four

possible clues. In addition to administering these standardized tests, the officer

observed Jones closely and saw that his carotid pulse was rapid and he was sweating

profusely; his sense of the passage of time was abnormally fast; he displayed tremors

in his eyelids; and he swayed and was unable to maintain his balance. Based on

                                           3
Jones’ performance on the field sobriety tests and his other observations about Jones’

condition, the officer concluded that his motor coordination and ability to react to

driving conditions were impaired and that he was under the influence of some drug

to the extent it was less safe for him to drive.

       The officer testified that the term “synthetic marijuana” is used to describe the

result of a manufacturer spraying a psychoactive drug, such as a stimulant, a

depressant, or a hallucinogen, on some leafy plant matter that can be smoked as the

means of ingesting the drug. He also testified that Thorazine is a central nervous

system depressant that can cause horizontal gaze nystagmus.

       The offense of driving while under the influence to the extent that it is less safe

to drive has three elements: “(1) driving, (2) under the influence of alcohol, (3) to the

extent that it is less safe for the person to drive.” (Footnote omitted.) Lee v. State, 280

Ga. App. 706, 707 (634 SE2d 837) (2006). The State is not required, however, to

adduce evidence that the defendant “actually committed an unsafe act while

driving[.]” Id. See also Yglesia v. State, 288 Ga. App. 217, 218 (653 SE2d 823)

(2007) (accord); Shaheed v. State, 270 Ga. App. 709, 710 (1) (607 SE2d 897) (2004)

(Proving that a driver is impaired to the extent that it is less safe for the person to

drive “requires proof of impaired driving ability, but not an actual unsafe act.”)

                                            4
(punctuation and footnote omitted; emphasis supplied). There was ample evidence

that Jones was driving while his ability to drive safely was impaired. To the extent

Jones contends that the evidence was insufficient because there was no evidence that

he committed an actual unsafe act while driving, this argument lacks merit.

      Moreover, by Jones’ own admission, he had smoked synthetic marijuana that

day, and the State adduced evidence that, by smoking synthetic marijuana, Jones had

ingested a psychoactive drug, although that drug was not identified. By Jones’

admission, he had also taken another psychoactive drug, prescription Thorazine.

OCGA § 40-6-391 (a) (2) does not require proof that the defendant had consumed an

illegal drug. The offense may be established by showing that the defendant was

driving while under the influence of “any drug to the extent it [was] unsafe for the

person to drive.” (Emphasis added.) Id.1 In addition, the evidence may authorize a

jury to find a defendant guilty beyond a reasonable doubt of driving under the

influence of one drug specified in a DUI, less safe, accusation or indictment, even

      1
        See OCGA § 40-6-391 (b) (A legal entitlement to use a drug is not a defense
to DUI if the defendant “is rendered incapable of driving safely as a result of using
a drug other than alcohol which such person is legally entitled to use.”); State v.
Kachwalla, 274 Ga. 886, 887 (561 SE2d 403) (2002) (A person may commit the
offense of driving under the influence of a drug other than alcohol that the person is
legally entitled to use, provided the person’s use of the drug renders the person
incapable of driving safely.).

                                          5
when the evidence shows that the defendant had consumed drugs in addition to the

specified drug. See Rivera v. State, 309 Ga. App. 544, 545 (1) (710 SE2d 694)

(2011).2 The evidence in this case authorized the jury to find Jones guilty of driving

under the influence of a drug to the extent that it was less safe to drive. Id. See

Buchanan v. State, 264 Ga. App. 148, 151 (2) (589 SE2d 876) (2003) (Because

OCGA § 40-6-391 (a) (2) makes it unlawful to drive while under the influence of any

drug, an accusation or indictment brought pursuant to that Code section need not

name a particular drug.).

      2. Jones contends that Count 1 of the accusation fails to charge him with any

offense under Georgia law. Jones failed to include in his appellate brief a statement

of the method by which this claim of error was preserved for consideration on appeal

as required by Court of Appeals Rule 25 (a). A claim that a charging instrument fails

to charge the defendant with any offense under Georgia law can be raised in a general


      2
        In Rivera v. State, the indictment charged the defendant with DUI under
OCGA § 40-6-391 (a) (2), specifically, driving under the influence of lorazepam and
driving under the influence of zolpidem; the defendant admitted having taken
lorazepam; an officer observed the defendant driving erratically and violating traffic
laws; the defendant exhibited clues of impairment on field sobriety tests; and a blood
test showed that she had ingested lorazepam, zolpidem, and mirtazapine. 309 Ga.
App. at 544-545. We held that the evidence was sufficient to convict her of the two
DUI counts. Id. at 545 (1).

                                          6
demurrer3 or a motion in arrest of judgment.4 Coleman v. State, 318 Ga. App. 478,

479 (1) (735 SE2d 788) (2012). The record shows that Jones did not file a general

demurrer before trial or a motion in arrest of judgment within the term of court in

which judgment was entered. “The failure to file a general or special demurrer, or a

timely motion in arrest of judgment, waives any claim that could have been raised in

a general or special demurrer.” Coleman v. State, 318 Ga. App. at 479 (1).




      3
             A general demurrer challenges the validity of an indictment
             by asserting that the substance of the indictment is legally
             insufficient to charge any crime, and it should be granted
             only when an indictment is absolutely void in that it fails
             to charge the accused with any act made a crime by the
             law. Put another way, the true test of the sufficiency of an
             indictment to withstand a general demurrer is found in the
             answer to the question: Can the defendant admit the charge
             as made and still be innocent? If he can, the indictment is
             fatally defective. If the indictment is fatally defective, the
             sufficiency of the indictment can be questioned by general
             demurrer or by motion in arrest of judgment.
(Citations and punctuation omitted.) Poole v. State, 326 Ga. App. 243, 247-248 (2)
(a) (756 SE2d 322) (2014).
      4
          When a judgment has been rendered, either party may
          move in arrest thereof for any defect not amendable which
          appears on the face of the record or pleadings. . . . A
          motion in arrest of judgment must be made during the term
          at which the judgment was obtained.
OCGA § 17-9-61.

                                         7
         Even if Jones could challenge the validity of the accusation on appeal, we see

no fatal flaw in it. 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.” As the arresting officer

explained, synthetic marijuana denotes, not a single chemical compound, but a

category of drugs, with the common element that the drug is ingested by smoking

leafy plant material sprayed with the drug. Jones could not admit the charge as made

and still be innocent of violating OCGA § 40-6-391 (a) (2).

         We note that Jones also contends that, while the accusation charged him with

driving under the influence of synthetic marijuana, the evidence was fully consistent

with the theory that his impairment actually resulted from his prescribed medication,

Thorazine. This argument invokes the “fatal variance” argument he made in the trial

court.

         [A] variance between the indictment and the evidence at trial is fatal if
         the allegations fail to meet these two tests: (1) the allegations must
         definitely inform the accused as to the charges against him so as to
         enable him to present his defense and not be taken by surprise by the
         evidence offered at trial, and (2) the allegations must be adequate to
         protect the accused against another prosecution for the same offense.

                                            8
(Citations and punctuation omitted.) In the Interest of J. H. M., 295 Ga. App. 483, 485

(672 SE2d 411) (2008). As explained in Division 1, supra, an accusation charging a

violation of OCGA § 40-6-391 (a) (2) need not specify a particular drug responsible

for impairing the defendant’s ability to drive safely. Consequently, the “synthetic

marijuana” detail incorporated into the accusation is “an unnecessary specification

of a legally unnecessary fact.” (Citation and punctuation omitted.) In the Interest of

J. H. M., 295 Ga. App. at 485 (1). Jones failed to show a fatal variance under the

applicable standard. Id.

      Judgment affirmed. Dillard and McFadden, JJ., concur.




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