                               SECOND DIVISION
                                 MILLER, P. J.,
                              BROWN and GOSS, 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


                                                                    January 25, 2019




In the Court of Appeals of Georgia
 A18A1829. STRICKLAND v. THE STATE.

      BROWN, Judge.

      Antonio Strickland was charged by uniform traffic citation with following too

closely in violation of OCGA § 40-6-49. At the close of evidence during his bench

trial, Strickland made an oral motion to quash the charge, which the trial court denied.

Strickland appeals, contending that the trial court erred in denying his motion to

quash the charge because the citation fails to allege the essential elements of the

offense. For the reasons explained below, we agree and reverse.

      As we have previously explained,

      the true test of the sufficiency of an indictment or accusation or citation
      is not whether it could have been made more definite and certain (or, for
      that matter, perfect,) but whether it contains the elements of the offense
      intended to be charged, and sufficiently apprises the defendant of what
      he must be prepared to meet, and in case any other proceedings are taken
      against him for a similar offense, whether the record shows with
      accuracy to what extent he may plead a former acquittal or conviction.


(Citations and punctuation omitted.) Thomason v. State, 196 Ga. App. 447, 448 (2)

(396 SE2d 79) (1990). In Jackson v. State, 301 Ga. 137, 140 (1) (800 SE2d 356)

(2017), the Supreme Court of Georgia emphasized that withstanding a general

demurrer or motion to quash “requires more than simply alleging the accused violated

a certain statute.” Thus, a legally sufficient indictment must either “(1) recite the

language of the statute that sets out all the elements of the offense charged, or (2)

allege the facts necessary to establish violation of a criminal statute.” Id. at 141 (1).

“[I]f the accused can admit all the indictment or accusation or citation charges and

still be innocent of having committed any offense, the indictment or accusation or

citation is defective.” (Citation and punctuation omitted.) Thomason, 196 Ga. App.

at 448 (2).

      Here, the citation charged Strickland with the offense of “following to[o]

close[ly] in violation of code section 40-6-49.” OCGA § 40-6-49 provides:

      (a) The driver of a motor vehicle shall not follow another vehicle more
      closely than is reasonable and prudent, having due regard for the speed
      of such vehicles and the traffic upon and the condition of the highway.


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      (b) The driver of any motor vehicle which is drawing another vehicle
      when traveling upon a roadway outside of a business or residential
      district and which is following another motor truck or motor vehicle
      drawing another vehicle shall, whenever conditions permit, leave
      sufficient space so that an overtaking vehicle may enter and occupy such
      space without danger, except that this shall not prevent a motor truck or
      motor vehicle drawing another vehicle from overtaking and passing any
      like vehicle or other vehicle.

      (c) Motor vehicles being driven upon any roadway outside of a business
      or residential district in a caravan or motorcade whether or not towing
      other vehicles shall be so operated as to allow sufficient space between
      each such vehicle or combination of vehicles so as to enable any other
      vehicle to enter and occupy such space without danger. This subsection
      shall not apply to funeral processions, parades, or other groups of
      vehicles if such groups of vehicles are under the supervision and control
      of a law enforcement agency.

      (d) Vehicles which approach from the rear any other vehicle or vehicles
      stopped or slowed to make a lawful turn shall be deemed to be following
      for purposes of this Code section.

      (e) This Code section shall not apply to the operator of any non-leading
      vehicle traveling in a coordinated platoon. For purposes of this
      subsection, the term “coordinated platoon” means a group of motor
      vehicles traveling in the same lane utilizing vehicle-to-vehicle
      communication technology to automatically coordinate the movement
      of such vehicles.


We conclude that the citation was substantively defective because it simply alleges

that Strickland violated a certain statute, which is insufficient to survive a motion to

quash. See Jackson, 301 Ga. 140 (1). The citation fails to recite the language of

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OCGA § 40-6-49 setting out all the elements of the offense. The fact that the citation

includes the verbiage of “following too closely” — the title of the code section —

does not remedy the issue. Cf. State v. Ware, 282 Ga. 676, 678 (653 SE2d 21) (2007)

(“it is fundamental that the preamble or caption of an act is no part thereof and cannot

control the plain meaning of the body of the act”) (citation omitted). Likewise, the

citation fails to allege any facts necessary to establish a violation of OCGA § 40-6-49.

While it indicates an accident occurred, the citation does not provide any details. It

is unclear from the citation how the accident occurred, how many vehicles were

involved, at what speeds the vehicles were traveling, and the approximate distance

between the vehicles. The citation does allege that the weather was “clear,” the road

was “dry,” and the traffic was “medium,” but this alone is insufficient to establish that

Strickland violated OCGA § 40-6-49. Accordingly, the trial court erred in denying

Strickland’s motion to quash the citation, and Strickland’s conviction is reversed. See

Spence v. State, 263 Ga. App. 25, 28 (2) (587 SE2d 183) (2003); Ross v. State, 235

Ga. App. 7 (508 SE2d 424) (1998).

      Judgment reversed. Miller, P. J., and Goss, J., concur.




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