William Harden, Jr., was convicted of homicide by motor vehicle in the first degree, operating a motor vehicle after being declared a habitual violator, and driving under the influence of alcohol. Harden appeals his convictions and the denial of his motions for a directed verdict as to the homicide by motor vehicle and driving under the influence of alcohol charges. 1
*674 On April 12, 1991, Harden was driving along a curved, wet highway when his pickup truck swerved off the road, skidded and struck a tree. Harden’s passenger was killed. Harden had been drinking, though the deputy sheriff who arrived at the scene did not detect the presence of alcohol on Harden’s breath. Harden was slightly injured and was taken to a hospital. There he met a state trooper who was investigating the fatal accident. The trooper asked hospital personnel to conduct a blood-alcohol test on Harden and was told that a lab technician would perform the procedure. Thereafter, someone in a hospital uniform appeared and withdrew Harden’s blood. The state trooper knew nothing about the person’s qualifications. At trial, the State offered no other evidence of the person’s qualifications.
1. Harden asserts that the trial court erred in admitting the results of his blood-alcohol test into evidence because the State failed to prove that a qualified person withdrew his blood as required by OCGA § 40-6-392. We agree. The evidence should not have been admitted.
“When a person shall undergo a chemical test at the request of a law enforcement officer [under Code section 40-5-55], only a physician, registered nurse, laboratory technician, emergency medical technician, or other qualified person may withdraw blood for the purpose of determining the alcoholic content therein.” (Emphasis supplied.) OCGA § 40-6-392 (a) (2).
This court has construed OCGA § 40-6-392 “as establishing a mandatory requirement applicable in any criminal case arising out of an alleged violation of OCGA § 40-6-391 and in which that violation is an essential element of the asserted criminal liability. The mandatory requirement is that when the State seeks to prove the violation by evidence of a chemical test, the State has the burden of demonstrating compliance with the statutory requirements.” (Punctuation omitted.)
Munda v. State,
The State argues that it would be unreasonable to expect a law
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enforcement officer to ascertain the qualifications of the person withdrawing the blood before the procedure can be performed. We agree that such an expectation would be unreasonable. However, that argument misses the point. A law enforcement officer is not expected to know the qualifications of the person withdrawing the blood. All that is required, in terms of qualifications, is that the State prove
at trial
that the person who performed the procedure was qualified. Here, the State attempted to prove that the person who withdrew Harden’s blood was qualified through the testimony of a state trooper who knew nothing about her qualifications. The trooper could only testify to what hospital personnel had told him. This testimony is clearly hearsay. “Hearsay evidence has no probative value even if it is admitted without objection.” (Citations and punctuation omitted.)
Shaver v. State,
Although the test results were erroneously admitted, we must also determine whether, under the facts of the case, the admission was harmless error. When Harden presented his case, he admitted that he and his friend had consumed about two pitchers of beer before he got into the truck and that he drank more beer while he was driving. On cross-examination, Harden flatly admitted that he was not sober at the time of the accident. Based upon this evidence, a reasonable trier of fact could have found him guilty beyond a reasonable doubt.
Jackson v. Virginia,
Thus, any error in the admission of the test results would not mandate a reversal because it is highly probable that that error did not contribute to the guilty verdicts.
Johnson v. State,
2. Harden also claims that the trial court erred in denying his motion for a directed verdict because, when the State rested, there was no evidence proving that he was driving under the influence. We disagree.
“A directed verdict of acquittal should be granted only where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a
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verdict of acquittal. OCGA § 17-9-1. In reviewing the denial of a motion for a directed verdict made at the close of the State’s case, an appellate court considers not only the evidence produced in the State’s case-in-chief, but also any evidence introduced subsequent to the motion by the defense.
Bethay v. State,
3. Harden also contends that the trial court erred in recharging the jurors, upon their request, on the issue of intent. Although Harden’s argument is not clear, he appears to claim that during the recharge the judge intimated his opinion as to Harden’s guilt, which would be improper under OCGA § 17-8-57. We have examined the recharge and disagree. Furthermore, we note that Harden failed to specifically object to the recharge at trial and has therefore waived the issue for purposes of appeal.
Butts v. State,
Judgment affirmed.
Notes
Harden apparently does not appeal the habitual violator conviction. In his motion for a directed verdict, he only mentioned the DUI and the vehicular homicide charges. In addition, Harden testified on cross that he had been declared a habitual violator. Only the third enumeration of error has any application to the habitual violator charge.