At issue in this case is the construction of a portion of OCGA § 40-5-55, Georgia’s implied consent law. In pertinent part, OCGA § 40-5-55 provides that any person who operates a motor vehicle in Georgia shall be deemed to have given consent to a chemical test of the driver’s bodily substances to determine the presence of alcohol or other drug if the driver is arrested for driving under the influence of alcohol or drugs or if the driver is involved in a traffic accident resulting in serious injury or death. 1 Because it is conceded that appellant Harley Andrew Snyder was never arrested for driving under the influence, the focus of this case is on the second instance where consent for chemical testing is deemed to have been given — “if such person is involved in any traffic accident resulting in serious injuries or fatalities.” 2
Appellant Snyder was involved in a collision while driving a motor vehicle. The investigating law enforcement officer detected an *212 odor of alcohol on appellant as well as in appellant’s vehicle, performed an alco-sensor test on appellant’s breath which registered positive for the presence of ethyl alcohol, and concluded, after investigation, that appellant caused the collision by failing to obey a stop sign. Though Snyder had no visible injuries and his passenger suffered only facial lacerations, was alert and conversing with passersby and emergency medical personnel, both men were transported to a local hospital for treatment. At the investigating officer’s request, a law enforcement officer at the hospital read the implied consent warning to appellant and received appellant’s consent to draw blood for chemical testing. Appellant was not under arrest at the time. Ten days after the accident, appellant’s passenger died.
The question is whether the State’s use of test results on bodily substances that are requested and collected for testing after the traffic accident but before a person dies as a result of the accident is authorized.
3
The trial court denied appellant’s motion to suppress, concluding that the statute allowed testing since there existed probable cause to believe Snyder was driving under the influence, Snyder was involved in an accident that resulted in a fatality, and it was immaterial that the test on Snyder’s bodily substances took place before the victim died.
4
The Court of Appeals granted Snyder’s application for interlocutory review and affirmed the trial court. The appellate court determined the language of the statute was plain and susceptible of only one natural and reasonable construction, concluding “there is no requirement that the serious injury or fatality occur prior to [the driver being read] the implied consent warnings, only that an individual is deemed to have given consent ‘when’ or ‘if’ this circumstance exists.”
Snyder v. State,
1. Appellant first posits that a driver must be placed under arrest before a request may be made for the driver’s bodily substances for chemical testing. We decided this assertion adversely to appellant in
Hough v. State,
2. Appellant next maintains that the serious injury or fatality required to have resulted from the traffic accident must be suffered by the driver whose bodily substances are sought for chemical testing. However, OCGA § 40-5-55 (a) contains no such words of limitation; rather, the statute’s lack of limitation in this regard authorizes the chemical testing of the bodily substances of a driver involved in a traffic accident in which the driver suffers a serious injury
(State v. Umbach,
3. Appellant next contends the serious injury or fatality that triggers the second contingency of OCGA § 40-5-55 (a) must have been known prior to the request by a law enforcement officer that a driver submit to chemical testing of a bodily substance and the reading of the implied consent warning. See OCGA § 40-5-67.1 (before chemical testing, driver must be informed of the right to refuse to submit to a test), and
Cooper v. State,
OCGA § 40-5-55 does not contain an express statement of a temporal connection between the traffic accident and the resulting serious injury or fatality. Compare OCGA § 40-6-275 (c) (drivers of vehicles involved in an accident with no
apparent
serious personal injury or death have a duty to remove the vehicles from the roadway); OCGA§ 40-6-273 (driver ofa vehicle involved in an accident resulting in injury to or the death of any person shall
immediately
give notice to the local police department and, in
Steele v. State,
However, in determining whether appellant is entitled to suppression of the results of tests done with blood extracted from appellant after he was informed of the implied consent warnings, we cannot view OCGA § 40-5-55 in a vacuum because the statute is the springboard for a law enforcement officer’s duties under OCGA § 40-5-67.1 to request chemical testing of a driver’s bodily substances and to inform the driver of the implied consent warning. The two statutes are “in pari materia” since they relate to the same subject matter, and it is an elementary rule of statutory construction that statutes in pari materia be construed together.
Mathis v. Cannon,
The decision of the Court of Appeals permits law enforcement officers to request a driver who has not been arrested to submit to chemical testing and to warn the driver of the consequences of refusing to submit based on the fact that the driver has been involved in a traffic accident. However, the statutory scheme of implied consent is more narrow and, in the absence of an arrest, covers only those traffic accidents which have resulted in serious injury or death at the time the request for chemical testing is made. At the time the officer requested chemical testing of appellant and informed appellant of the implied consent warnings, law enforcement officers knew appellant had been driving a vehicle, knew the vehicle had been involved in a traffic accident, and had probable cause to believe appellant had been driving under the influence. Since, at the time chemical testing was requested, appellant had not been arrested and there was no evidence that a serious injury or fatality had resulted from the traffic accident, the request for chemical testing was invalid and the results of the chemical testing should have been suppressed. See
Hough v. State,
supra,
Judgment reversed.
Notes
However, for a driver who is not dead, unconscious or otherwise incapable of refusal, the implied consent is not effective until the driver consents to chemical testing after being informed of the statutory right to refuse to submit to the testing and the consequences of the refusal, i.e., the suspension of driving privileges and that the decision to refuse may be offered into evidence against the driver at trial. OCGA §§ 40-5-55 (b); 40-5-67.1 (b). In addition, law enforcement personnel must have probable cause to believe the person asked to submit to testing was driving under the influence of alcohol, drugs, or other intoxicating substance.
Cooper v. State,
OCGA § 40-5-55 (c) defines the phrase “traffic accident resulting in serious injuries or fatalities” as meaning “any motor vehicle accident in which a person was killed or which one or more persons suffered a fractured bone, severe burns, disfigurement, dismemberment, partial or total loss of sight or hearing, or loss of consciousness.”
While the indictment in the appellate record contains a count charging appellant with serious injury by vehicle (OCGA § 40-6-394) by causing bodily harm to a third person by rendering useless a member of his body, i.e., a wrist and two ribs, there was no effort at the suppression hearing to present this injury as a serious injury under OCGA § 40-5-55 (a).
There was no evidence presented at the suppression hearing establishing a causal link between the traffic accident and the death of the deceased passenger, with the trial court and prosecutor agreeing it was a different issue than the issue of suppression.