concurring specially.
In her memorandum opinion and order denying Schwagel’s motion for judgment of acquittal following the bench trial, the trial judge wrote:
“Lastly, the defendant’s claim that he was only charged with the offense driving under the influence and therefore cannot be convicted of actual physical control is mer-itless. The Uniform Traffic Citation clearly states the ordinance number of which the defendant is charged with violating. In the ease at hand, the citation succinctly states that the defendant was charged with violating Fa[r]go Municipal Code 8-0310. If the defendant was confused about the pending charge, he should have made the necessary motion, or at the very least made the Court aware of his confusion before allowing progression to trial. Instead, the defendant chose to proceed, only to later claim, as a last ditch effort, that he wasn’t given appropriate notice of the charges against him.”
That statement makes good sense in view of Rule 7(f) N.D.R.Crim.P., [bill of particulars should be granted to enable the defendant to adequately prepare for trial], cited by neither party. Had the citation, without more, charged Schwagel with a violation of the ordinance, I would agree with the trial court that it was incumbent on Schwagel to seek a bill of particulars. However, here there was more. The arresting officer added “DUI” to the citation. The common understanding of those initials is “driving under *876the influence.” Driving, as opposed to actual physical control, was the operative word of the charge.
Rule 7(c), N.D.R.Crim.P., specifies in part that an error or omission in the citation is not ground for reversal of a conviction “if the error or omission did not prejudicially mislead the defendant.” Sehwagel contends he was prepared to defend against a charge that he had driven the motor vehicle, not a charge that he had actual physical control of the vehicle. On the record before us, that contention is not refuted.
Although we reverse the judgment of conviction of driving under the influence, the offense named in the judgment of conviction, and, the verdict of actual physical control contained in the trial judge’s memorandum opinion and order, I understand the effect of the majority opinion is to permit Sehwagel to be properly charged and tried with actual physical control. State v. Schuh, 496 N.W.2d 41 (N.D.1993); Rule 35(d) N.D.R.App.P. [Criminal Appeals; Power of Court on Review].