concurring specially.
I agree that the evidence showed beyond a reasonable doubt that appellant’s blood-alcohol concentration was 0.18 grams percent about *84130 minutes after he was stopped. The question is whether he was properly charged.
Decided November 18, 1991. James A. Chamberlin, Jr., for appellant.The accusation was written according to a prior version of OCGA § 40-6-391 (a) (4), which made it a crime to drive under the influence of 0.12 or more of alcohol concentration. Currently, and at the time of defendant’s act, the critical quantitative time is the three-hour period after the driving has ceased. See Ga. L. 1990, pp. 2048, 2312, § 5. This revision was apparently made for evidentiary reasons. There is virtually no way for measuring the suspected alcohol-influenced driver’s blood while he is driving. The legislature changed the critical quantitative time to the period in which the concentration could be measured to give a quantity which would conclusively mean that the level at the time of driving, whatever it was, was too high to drive safely as a matter of public policy. I do not agree with the majority that subsection (4) prohibits both driving with .12 concentration and driving with concentration which measures .12 at any time within three hours of ceasing to drive. When the statute was changed, the former was abandoned, as the latter covered it satisfactorily by moving the quantitative timing. The result is that whether the blood-alcohol level is higher or lower than .12 when driving, if it is .12 within three hours of driving, the person is guilty of driving under the influence as forbidden by OCGA § 40-6-391 (a) (4). If, for example, the alcohol consumption was occurring while the person was driving, the blood alcohol level might not reach .12 until after he or she was stopped and tested.
If appellant had admitted that he “[did] drive or operate a motor vehicle . . . while under the influence of 0.12 grams or more of alcohol concentration . . .” as charged, it could reasonably be inferred that he was driving while the alcohol concentration in his blood was of a level which would measure 0.12 a minute after he stopped, which would be a violation as described by the revised subsection (4), the very section expressly charged. So the rule applied in Thomason v. State, 196 Ga. App. 447, 448 (2) (396 SE2d 79) (1990), as taken from Brooks v. State, 141 Ga. App. 725, 730 (1) (234 SE2d 541) (1977), does not aid appellant.
The evidence in this case, clearly supported a conviction under OCGA § 40-6-391 (a) (4). The discrepancy between the act inartfully described in the accusation as having been committed and the act which the statute prohibited is not material in considering whether an essential element was omitted, which is appellant’s complaint. See Chappell v. State, 164 Ga. App. 77 (1) (296 SE2d 629) (1982).
Richard H. Taylor, Solicitor, for appellee.