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STATE v. ETZKORN

No. 19335.

552 N.W.2d 824 (1996)

1996 SD 99

STATE of South Dakota, Plaintiff and Appellee, v. Allen ETZKORN, Defendant and Appellant.

Supreme Court of South Dakota.

Decided August 7, 1996.

Attorney(s) appearing for the Case

Mark W. Barnett, Attorney General, Jeffrey P. Hallem, Assistant Attorney General, Pierre, for plaintiff and appellee.

Lee C."Kit" McCahren of Olinger, Lovald, Robbennolt and McCahren, Pierre, for defendant and appellant.

MILLER, Chief Justice.

[¶ 1] Allen Etzkorn (Etzkorn) appeals his conviction for driving while under the influence of alcohol (DUI). We reverse and remand.

FACTS

[¶ 2] On March 7, 1995, state filed an information charging Etzkorn with DUI. The charge was filed in the alternative under SDCL 32-23-1(1) or 32-23-1(2):

A person may not drive or be in actual physical control of any vehicle while: (1) There is 0.10 percent or...

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