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

October 14, 2015

In the Court of Appeals of Georgia

A15A1442. BARGHI v. THE STATE.

DILLARD, Judge.

Following a bench trial, Gloria Barghi was convicted of driving under the

influence of alcohol to the extent it was less safe for her to do so (DUI less safe),

driving under the influence of alcohol with an excessive blood-alcohol concentration

(DUI per se), and failure to obey a traffic-control device. On appeal, Barghi contends

that the trial court erred in denying her plea in bar, in which she claimed that her

prosecution for the DUI charges was barred by the statute of limitation. Barghi also

maintainsthat the court erred in proceeding with trial despite the fact thatshe was not

arraigned after the State amended the accusations, and in finding that the State

presented sufficient evidence that its prosecution was not time-barred by considering

evidence from the plea in bar during trial. For the reasons set forth infra, we affirm.
Viewed in the light most favorable to the trial court’s findings and judgment,

1

the evidence shows that at approximately 2:00 a.m. on November 5, 2011, a City of

Roswell police officer observed Barghi’s vehicle traveling northbound in the center

lane of a three-lane reversible highway. But at that time of night, the overhead trafficcontrol device regulating traffic flow clearly indicated with a red “X” that northbound

traffic was prohibited from using the center lane. The officer, therefore, followed

Barghi’s vehicle and initiated a traffic stop after she continued traveling in the

prohibited lane. 

Upon stopping Barghi, the officer approached her vehicle and immediately

detected an alcoholic-beverage odor. The officer also noticed thatBarghi’s eyes were

glassy and bloodshot. Consequently, the officer had Barghi perform several fieldsobriety tests (all of which indicated impairment), and also administered an alcosensor breath test, which returned a positive result for alcohol. The officer then

arrested Barghi for DUI, read her the implied-consent notice,2transported her to the

police station, and administered a breath test, which indicated a blood-alcohol content

of 0.125. 

1

See Hammont v. State, 309 Ga. App. 395, 396 (710 SE2d 598) (2011).

2

See OCGA § 40-5-67.1 (b) (2).

2
On October 2, 2013, the State charged Barghi, via accusations, with one count

of driving under the influence of alcohol to the extent that it was less safe for her to

do so (DUI less safe),3

alleging that Barghi “did on or about 11/5/2011 drive or have

physical control of a moving vehicle while under the influence of alcohol to the

extent it was less safe”; one count of driving under the influence of alcohol with an

excessive blood-alcohol concentration (DUI per se),4

alleging that she “did on or

about 11/5/2011 drive or have control of a moving vehicle with an alcohol

concentration of 0.08 grams or more”; and one count of failure to obey a trafficcontrol device.5 Subsequently, on December 27, 2013, Barghi waived arraignment

and pleaded not guilty to the charges. On that same day, she also filed general and

special demurrers to the accusations. 

On January 6, 2014, the State slightly amended the two DUI counts in the

accusations. Specifically, in both counts, the language alleging thatBarghi did “drive

or have control of a moving vehicle” was changed to allege more succinctly that she

did “drive a moving vehicle.” Approximately one month later, Barghi filed a plea in

3

See OCGA § 40-6-391 (a) (1).

4

See OCGA § 40-6-391 (a) (5).

5

See OCGA § 40-6-20 (a).

3
bar, arguing that the State’s prosecution on the DUI counts was time-barred because

the amended accusations were filed after the applicable two-year statute of limitation

had expired.

6 On February 7, 2014, the trial court conducted a hearing on the issue.

And nearly ten dayslater, the court issued an order, finding that the amended charges

were not time-barred and, thus, denying Barghi’s plea in bar. 

The case then proceeded to a bench trial, during which only the arresting

officer testified. In fact, Barghi presented no evidence in her defense, but after the

State rested, she reiterated her argument that the amended accusations were filed after

the statute of limitation expired and, therefore, the State’s prosecution of those counts

wastime-barred. Barghi further argued that, regardless of whether her plea in bar was

properly denied, the State failed to present any evidence at trial that its prosecution

was not barred by the statute of limitation. Unpersuaded, the trial courtresponded that

evidence of the State’s compliance was sufficiently presented during the hearing on

Barghi’s plea in bar, over which the same trial judge had also presided, and thereafter,

the court found Barghi guilty on all three counts. Subsequently, Barghi filed a motion

for new trial, which the trial court denied. This appeal follows.

6

See former OCGA § 17-3-1 (d) (2011) (“Prosecution for misdemeanors must

be commenced within two years after the commission of the crime.”).

4
1. Barghi first contends that the trial court erred in denying her plea in bar,

arguing that the prosecution on the DUI counts was time-barred because the State

filed the amended accusations after the expiration of the statute of limitation. We

disagree.

As previously noted, under former OCGA § 17-3-1 (d), which was applicable

at the time of Barghi’s arrest,

7

the “[p]rosecution for a misdemeanor must be

commenced within two years after the offense was committed.” And a prosecution

is considered to continue until there has been a final disposition of the case.8

Importantly, OCGA § 17-7-71 (f) provides that “[p]rior to trial, the prosecuting

attorney may amend the accusation, summons, or any citation to allege or to change

the allegationsregarding any offense arising out of the same conduct of the defendant

which gave rise to any offense alleged or attempted to be alleged in the original

7 Effective July 1, 2012, the statute was amended such that former subsection

(d) became subsection (e), which now providesthat “[p]rosecution for misdemeanors

shall be commenced within two years after the commission of the crime.” Thus, in

addition to the subsection, the only other change was the replacement of “must” with

“shall.” See Ga. L. 2012, Act 709, § 4-1.

8

See OCGA § 16-1-3 (14) (“‘Prosecution’ means all legal proceedings by

which a person’s liability for a crime is determined, commencing with the return of

the indictment or the filing of the accusation, and including the final disposition of

the case upon appeal.”).

5
accusation, summons, or citation.” Furthermore, whether an amendment to an

accusation or indictment after expiration of the statute of limitation broadens or

substantially amends the original charge is undoubtedly an issue of law.9

Here, as mentioned supra, Barghi was arrested for DUI on November 5, 2011,

and the State charged her, via accusations, on October 2, 2013. Thus, the State

commenced prosecution of Barghi on the DUI charges prior to the expiration of the

applicable two-year statute of limitation.

10 On January 6, 2014, more than a month

before the start of Barghi’s trial, the State filed accusations amending the two DUI

counts. But the amended accusations gave the same date of the offenses as the

original accusation, were based on the same conduct, and, indeed, made only slight

changes to the wording of the allegations, altering “drive or have physical control of

a moving vehicle” to “drive a moving vehicle.” Thus, the amended accusations did

not commence a new prosecution, butrather, constituted a continuation of the original

9

See Lee v. State, 289 Ga. 95, 96 (709 SE2d 762) (2011); accord Wooten v.

State, 240 Ga. App. 725, 726 (2) (524 SE2d 776) (1999).

10

See former OCGA § 17-3-1 (d).

6
prosecution. Accordingly, the trial court did not err in denying Barghi’s plea in bar

on the ground that the statute of limitation for the two amended DUI counts expired.

11

2. Barghi also contendsthat the trial court erred in proceeding with trial despite

the fact thatshe was not arraigned after the State amended the accusations. Again, we

disagree.

As previously noted, on December 27, 2013, Barghi waived arraignment to the

charges in the original accusations. After the accusations were amended, the State

never soughtre-arraignment. At trial, Barghi objected to thisfailure and reiteratesthis

objection on appeal. However, as discussed in Division 1, supra, under OCGA § 17-

7-71 (f), the prosecution may amend an accusation at any time prior to trial.

Moreover, Barghi cites no authority for the argument that a minor amendment to an

accusation, as occurred here, requiresthe State to arraign a defendant a second time.12

11

See Prindle v. State, 240 Ga. App. 461, 461-62 (1) (523 SE2d 44) (1999)

(holding that defendant’s prosecution on DUI charges was not time-barred even

though amended accusations were filed more than two years after offenses were

committed, because original citations pertaining to the same offenses and conduct

were filed prior to the statute of limitation’s expiration); Thomas v. State, 233 Ga.

App. 224, 225 (1) (504 SE2d 59) (1998) (same).

12

See Vanorsdall v. State, 241 Ga. App. 871, 874-75 (2) (a) (528 SE2d 312)

(2000) (holding that filing of amended accusation that did not set forth new or

different charge did not require State to arraign defendant a second time before

proceeding to trial). Cf. Smith v. State, 279 Ga. 396, 399 (3) (614 SE2d 79) (2005)

7
Thus, the trial court did not err in denying Barghi’s objection regarding the lack of

a second arraignment and proceeding with trial.

13

3. Barghi further contends that the trial court erred in finding that the State

presented sufficient evidence that its prosecution was not time-barred by considering

evidence presented during the hearing on her plea in bar. Once again, we disagree.

This Court has previously held that a pretrial evidentiary hearing on a plea in

bar based upon the statute of limitation is a “very effective, fair and expedient method

to deal with limitation problems in many cases.”

14 We have further explained that

while the application of the statute of limitation can be a jury question, the issue can

also be resolved with a pretrial evidentiary hearing and order.15 And at trial, the

burden is unquestionably on the State to “prove that a crime occurred within the

statute of limitation, or, if an exception to the statute is alleged, to prove that the case

(noting that because amendment of the accusation did not constitute the

commencement of a new prosecution, the previous arraignment of defendant was

sufficient).

13

See Vanorsdall, 241 Ga. App. at 875 (2) (a).

14

State v. Tuzman, 145 Ga. App. 481, 483 (2) (243 SE2d 675) (1978),

abrogated on other grounds by State v. Outen, 289 Ga. 579, 581 (714 SE2d 581)

(2011).

15 Tuzman, 145 Ga. App. at 483 (2).

8
properly falls within the exception.”16 Nevertheless, in Jenkins v. State,

17

the Supreme

Court of Georgia noted that “while it is true that an exception to the statute of

limitations must be pled in the indictment if the State is relying on one, the statute of

limitations is not an element of the crime per se; it is found in Title 17 (Criminal

Procedure) in the chapter entitled ‘Limitations on Prosecution.’”

18 Bearing this in

mind, the Supreme Court further explained in Jenkins that the proper procedure for

litigating a plea in bar based upon the statute of limitation should be analogous to a

pretrial Jackson v. Denno

19

hearing.20 Specifically, the Supreme Court noted that if

a defendant prevails on a pretrial plea in bar on the statute of limitation, “the charge

should be dismissed; if the State prevails on this issue before trial, the defendant may

still require the State to prove at trial that the charge is not barred by the statute of

limitations.”

21

16 Lee, 289 Ga. at 97 (punctuation omitted).

17

 278 Ga. 598 (604 SE2d 789) (2004).

18

Id. at 604 (1) (footnote omitted).

19

 378 U.S. 368 (84 SCt 1774, 12 LE2d 908) (1964).

20

Jenkins, 278 Ga. at 604 (1).

21

Id. (footnote omitted).

9
In this matter, the trial court held a hearing on Barghi’s plea in bar, in which

the State presented evidence and argument that the original accusations were filed

prior to the expiration of the statute of limitation and that prosecution on the DUI

counts in the amended accusations, which were filed after the statute’s expiration,

was not time-barred because the State was permitted to amend the accusations at any

time prior to trial. At trial, after the State rested, Barghi presented no evidence but

argued, yet again, that the State’s amended accusations were time-barred and that the

State presented no evidence to the contrary during trial. In rejecting Barghi’s legal

argument, the trial court noted that the statute-of-limitation issue had already been

decided against Barghi when it denied her plea in bar, and in its final judgment, the

court incorporated its denial of the plea in bar in support of its finding that the State’s

prosecution was not time-barred. 

On appeal, Barghi reasserts that the State did not actually prove compliance

with the statute of limitation at the bench trial and that it was improper for the trial

court to consider evidence presented during the hearing on Barghi’s plea in bar in

support of its finding that the State’s prosecution was not time-barred. We are not

persuaded by this argument. 

10
Contrary to the scenario contemplated in Jenkins, Barghi presented no evidence

disputing the trial court’s earlier ruling that the State’s prosecution was not barred by

the statute of limitation

22

but, rather, simply reiterated her earlier legal arguments.

Furthermore, and also unlike the scenario contemplated in Jenkins, Barghi elected to

waive her right to a jury trial and instead proceeded to a bench trial with the same

finder of fact who presided over her plea in bar and who had, therefore, already ruled

upon the identical arguments less than two weeks earlier. And given that the statute

of limitation is not an element of the crime per se,23

 it was perfectly appropriate for

the trial court, as the trier of fact, to rely on evidence that was already a part of the

case record.

24 Accordingly, the trial court did not err in considering evidence

22

See id. (holding that “if the State prevails on this issue before trial, the

defendant may still require the State to prove at trial that the charge is not barred by

the statute of limitations” (emphasis supplied)).

23

See id.

24 Cf. Schaff v. State, 275 Ga. App. 642, 645 (3) (621 SE2d 595) (2005)

(holding that “a trial court may take judicial cognizance of records on file in its own

court” (punctuation omitted)); Jones v. State, 302 Ga. App. 147, 150-51 (690 SE2d

460) (2010) (noting differences between a jury trial and a bench trial, and that with

a jury trial “12 persons [] sit in judgment . . ., and [] the prosecutor [] bear[s] the

burden of convincing each one of the twelve persons of [the defendant’s] guilt

beyond a reasonable doubt,” and that by waiving the right to a jury trial, a defendant

“forfeit[s] the voir dire process and his right to have the 12 persons chosen through

that process decide his guilt or innocence, and that the judge instead . . . mak[es] that

11
presented during the plea in bar to support its finding at a bench trial that the State’s

prosecution was not time-barred. 

For all of the foregoing reasons, we affirm Barghi’s convictions.

Judgment affirmed. Ellington, P. J., and McFadden, J., concur.

determination.”); Hopkins v. State, 209 Ga. App. 337, 338 (433 SE2d 423) (1993)

(physical precedent only) (holding that “in a bench trial it is presumed that the judge,

as trier of fact, is able to distinguish between competent and incompetent evidence

and consider only that evidence which is admissible.”).

12