Helmeci v. StateHelmeci v. State
- Reporters:
- , ,
- Before:
- Blackburn
On May 2, 1995, a loaded dump truck driven by Dean Scott Helmeci collided with a passenger car on a Cherokee County road, killing the car’s driver. Criminal charges stemming from the incident resulted in Helmeci’s convictions for second degree vehicular homicide, driving with a controlled substance in his urine, reckless driving, driving an unsafe and improperly equipped vehicle, and possession of amphetamine and methamphetamine. In Case No. A97A2359, Helmeci appeals those convictions and the denial of his motion to suppress the scientific test which showed methamphetamine and amphetamine in his urine. In Case No. A98A0276, Helmeci appeals the trial court’s denial of his motion to remain in the local jail in Cherokee County pending his appeal.
Case No. A97A2359
1. Helmeci challenges the trial court’s denial of his motion to suppress the urine test results. Helmeci contends that the State failed to prove that the procedures used to analyze his urine were approved methods of testing pursuant to the Georgia Administrative Procedure Act, see
After the collision, a state trooper read Helmeci his implied consent rights pursuant to
In moving to suppress this evidence, Helmeci argued that the crime lab’s urinalysis did not meet the admissibility requirements of
Helmeci claimed that because the DFS had not published regulations governing the equipment and procedures used to test urine samples taken pursuant to
The question thus arises whether the new statute should be given application in this matter whеre the incident occurred on May 2, 1995.
As an initial matter, we note that this Court is generally without jurisdiction to rule on the constitutionality of a statute. See
Wright v. Transus, Inc.,
209 Ga. App. 771, 773-774 (2) (434 SE2d 786) (1993). Moreover, the Supreme Court has clearly held that retroactive application of a statute dealing with evidentiary matters such as those in this case does not violate constitutional principles. In
Martin v. State,
217 Ga. App. 860 (460 SE2d 92) (1995), this Court reversed the denial of a motion to suppress breath test results due to the failure of the arresting officer to utilize the implied consent warning set forth in a recently enacted amendment to
Although we have serious concerns with the application of any statute in a manner which retroactively alters the rights of a criminal defendant, substantively or otherwise, we are bound by the decisions of our Supreme Court, and therefore hold that
Helmeci also contends that the State presented insufficient evi
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dence that the urinalysis machine was operated with all of its electronic and operating components prescribed by its manufacturer properly attached and in good working order, as required by
2. Helmeci contends insufficient evidence supports his convictions because no evidence showed he was driving the dump truck at the time of the collision. On appeal, we review the evidence in a light most favorable to the verdict to determine whether a rational trier of fact could have found Helmeci guilty of these offenses beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Coates v. State, 216 Ga. App. 93, 94 (1) (453 SE2d 35) (1994). A trooper who arrived on the scene shortly after the collision determined that the dump truck belonged to Mr. Helmeci, who was found at the scene. The trooper also identified another man who had been in the truck with Helmeci and described that man as “crippled.” The trooper read Helmeci the implied consent warnings and took him to the hospital, where he voluntarily gave blood and urine samples. At trial, he identified Helmeci as the operator of the dump truck. Helmeci did not testify at trial, and nothing in the record shows he ever claimed he was not driving the truck. Likewise, no evidence showed the handicapped man in the dump truck with Helmeci was its driver. The evidence presented allowed the jury to determine Helmeci drove the dump truck and to exclude this altеrnative hypothesis and all others. Coates, supra; see also Smith v. State, 222 Ga. App. 701, 702 (1) (475 SE2d 715) (1996).
3. Helmeci contends that his conviction for possession of a controlled substance, a felony, merged into his conviction for driving with a controlled substance in his urine, a misdemeanor. He contends that because evidence that he possessed a controlled substancе in his urine was used up in proving the misdemeanor DUI charge, he cannot also be convicted of the felony possession charge. This contention is without merit.
“At common law, a merger occurred only when the same act constituted both a felony and a misdemeanor; the misdemeanor merged
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into the felony. The rulе had no application when both offenses were either misdemeanors or felonies. In Georgia, however, [after passage of
4. We also address Helmeci’s claim that the court improperly required him to pay $9,345.98 in restitution to the victim’s widow, an amount reprеsenting the unreimbursed expenses of the victim’s funeral. We reject Helmeci’s claim that the settlement monies received by the widow in settlement from Helmeci’s liability insurance company must offset the amounts ordered as restitution, especially where evidence showed the widow would not receive any payment from the settlement for many years and no evidence showed any part of the settlement was intended to cover the victim’s funeral expenses. Furthermore, the trial court was not required to inquire into Helmeci’s financial condition, his ability to pay, or his earning capacity where the defendant did not testify and offered no evidence on those issues. See
Cheeks v. State,
218 Ga. App. 212, 213-214 (460 SE2d 860) (1995). However, because the record does not reflect that the trial court actually considered the remaining factors enumerated in
Case No. A98A0276
5. In Case No. A98A0276, Helmeci appeals the trial court’s denial of his motion under
The statute is clearly couchеd in mandatory language, indicating that a trial court has no discretion in denying a request to remain in the county pending appeal. The State, however, cites
Whiddon v. State,
160 Ga. App. 777, 783-784 (9) (287 SE2d 114) (1982), a case decided prior to the enactment of
We need not decide whether Whiddon and Irvin remain viable under the new statute, for it is clear that the conditions authorizing transfer in those cases are not present in this case. Although the State argues that transfer was authorized due to overcrowding at the county jail, the jail administrator, Harvey Tyrone Duke, testified at the hearing that the prison was then holding 138 prisoners, including Helmeci, two fewer than its capacity of 140 prisoners. Seventeen other prisoners were being held in facilities in other jurisdictions. Duke did not testify that keeping Helmeci at the facility would create an insecurе or unsafe condition. Indeed, he admitted that he could house Helmeci if the judge required him to. He also admitted that the jail was continuing to accept new arrestees, although many had to be contracted out to other facilities in order to remain within the jail’s capacity.
Under these circumstances, the trial court erred in denying Helmeci’s motion to remain in the county jail pending the disposition of his appeals. Although retaining Helmeci in the county jail might necessitate transferring other prisoners to facilities in other counties, it must be remembered that Helmeci has a statutory right to remain in the county during his appeals, and that the county has a concomitant obligation to. accommodate that right. The fact that his presence might cause some inconvenience to the county does not mean that it would result in an insecure or unsafe condition. Accordingly, Helmeci *872 has the right to remain in the county jail pending the disposition of аll appeals in this case, including any possible appeal to the Supreme Court.
Judgment of conviction affirmed in Case No. A97A2359, award of restitution reversed, and case remanded with direction. Judgment reversed in Case No. A98A0276.
Pope, P. J., and Johnson, J., concur.
Notes
Neither the State nor the defendant brought this recent change in the law to the attention of this Court in their original briefs. Nor was it raised by the parties in connection with the motion for reconsideration. The new statute was first raised in an amicus curiae brief filed by the State Attorney General’s office in support of the State’s motion for reconsideration. We take this opportunity to remind the parties of their obligation to apprise this Court of all relevant statutory and case law in connection with their case, particularly where the law has been recently changed. We also wish to commend the Attorney General’s office *868 for its efforts in this matter and in bringing this issue to the attention of the Court. Without the input of the Attorney General, there is a possibility that the change in the law would not have been considered in our decision in this matter.