54955. THORNBERRY v. THE STATE.
Court of Appeals of Georgia
June 19, 1978
Rehearing denied July 28, 1978
146 Ga. App. 827
We reverse the grant of summary judgment to defendant First National Bank as to Check No. 5408 and the grant of summary judgment to defendant Trust Company as to Check Nos. 5290 and 5408.
4. The denial of plaintiffs motion for summary judgment is affirmed.
Judgment affirmed in part and reversed in part. Shulman and Birdsong, JJ., concur.
DECIDED JULY 3, 1978 — REHEARING DENIED JULY 28, 1978 —
Martin, Kilpatrick & Davidson, Marcus B. Calhoun, Jr., for appellant.
Willis & Carter, Grover C. Willis, Jr., Thompson, Redmond & Johnson, Lee R. Redmond, Hatcher, Stubbs, Land, Hollis & Rothschild, Jerry A. Buchanan, Gary L. Coulter, for appellees.
54955. THORNBERRY v. THE STATE.
BANKE, Judge.
The appellant was convicted of two counts of homicide by vehicle and sentenced to serve two consecutive one-year sentences. In this appeal, he attacks the state‘s use of a blood-alcohol test as evidence against him.
The evidence disclosed that, while being pursued by a state patrol car at speeds in excess of 100 mph, the appellant drove his automobile into another vehicle which was attempting to cross the highway, killing two of its occupants and rendering him unconscious. He was taken to a hospital, where a state patrolman ordered that a sample of his blood be extracted for a blood-alcohol test because the odor of alcohol had been detected in his car and on his breath. The result showed that his blood contained .08 percent alcohol.
1. The appellant moved to suppress the result of the
The appellant also argues for the first time on appeal that the extraction of his blood violated his constitutional rights and that it was illegal on certain other grounds as well. However, since these arguments were not raised in the court below, they will not now be considered on appeal. See Brown v. State, 115 Ga. App. 813 (1) (b) (156 SE2d 180) (1967); Pace v. State, 138 Ga. App. 839 (2) (227 SE2d 436) (1976).
2. It was not error to admit a lab technician‘s testimony concerning his chemical analysis of the appellant‘s blood over the objection that he was not properly shown to have been certified by the state crime laboratory to perform such chemical analyses, as required by
The defense objected to the witness’ testimony on the ground that the highest and best evidence of his certification would not be his permit card or his statement that he was certified, but some type of original document from the state crime laboratory containing his certification. It was not error to admit the testimony. See Helmly v. State, 142 Ga. App. 577 (236 SE2d 540) (1977).
3. The appellant also objected to the introduction of testimony concerning the blood test results on the ground that the chain of custody for the blood sample had not been properly established. It was not error to overrule the objection. The state‘s evidence showed that a doctor in the hospital emergency room took the sample from the appellant in the presence of the investigating officer, that it was labeled, sealed, and placed inside a “lock box” in the officer‘s presence, and that the sample was removed from the box by the lab technician who analyzed it. This was sufficient to establish with “reasonable certainty” that there had been no tampering with or alteration of the evidence. See Johnson v. State, 143 Ga. App. 169 (1) (237 SE2d 681) (1977). See also Pittman v. State, 110 Ga. App. 625 (1) (139 SE2d 507) (1964); Meadows v. State, 135 Ga. App. 758 (219 SE2d 174) (1975); Campbell v. State, 136 Ga. App. 338 (3) (221 SE2d 212) (1975).
4. Because the result of the blood test was properly admitted, it was not error to charge that it could be considered as evidence, nor was it error to overrule the motion for new trial as amended.
Judgment affirmed. Bell, C. J., Quillian, P. J., Webb, McMurray, Shulman and Birdsong, JJ., concur. Deen, P. J., and Smith, J., dissent.
SUBMITTED JANUARY 3, 1978 — DECIDED JUNE 19, 1978 — REHEARING DENIED JULY 28, 1978 —
Robert Edward Surles, for appellant.
William M. Campbell, District Attorney, Richard Hendrix, Assistant District Attorney, for appellee.
DEEN, Presiding Judge, dissenting.
I respectfully dissent based substantially on the same reasons outlined and contained in the dissent of Judge Smith and my dissent in Williams v. State, 145 Ga. App. 81 (243 SE2d 614). See also State v. Wood, Okla. Ct. of Crim. App., decided February 21, 1978, where the Oklahoma Court of Criminal Appeals holds “that the implied consent statute is properly construed as meaning that a person driving on the public roads gives his implied consent to a blood test in the event that he is rendered unconscious as a result of an automobile collision, and the police have probable cause to believe that he was driving while intoxicated. However, in order to secure to such a person the same rights guaranteed to other drivers upon Oklahoma‘s highways, it is necessary that where a person has his blood drawn and tested pursuant to his implied consent he must be given the opportunity, when he regains consciousness, to revoke his consent. In such a case, evidence of the blood test and its result would not be admissible. However, a person revoking his consent after he regains consciousness then becomes liable to suspension of his driver‘s license pursuant to
I am authorized to state that Judge Smith joins in this dissent.
SMITH, Judge, dissenting.
This dissent is based upon the same reasons contained in my dissent in Williams v. State, 145 Ga. App. 81, 86 (243 SE2d 614) (1978).
Since the Williams case, supra, cases from Oklahoma and Alaska have been decided that lend support to the Williams dissent. In the case of State v. Wood, 49 O.B.A.J. 333 (Okla. Cr. App., No. 0-77-101, 1978), the Oklahoma court sustained the trial court‘s order granting a motion to suppress the blood test results of a blood sample taken from an unconscious man.
The facts were as follows. Wood was charged with assault and battery with a dangerous weapon — an automobile — in that he was driving while under the influence of alcohol. He had a collision with another automobile, injuring a person. While the defendant was unconscious, and at the direction of a police officer, a sample of his blood was taken pursuant to the Oklahoma implied consent law.
The Oklahoma court had this to say about the implied consent statute as applied to the unconscious man:
“We are of the opinion, and so hold, that the implied consent statute is properly construed as meaning that a person driving on the public roads gives his implied consent to a blood test in the event that he is rendered unconscious as a result of an automobile collision, and the police have probable cause to believe that he was driving while intoxicated. However, in order to secure to such a person the same rights guaranteed to other drivers upon Oklahoma‘s highways, it is necessary that where a person has his blood drawn and tested pursuant to his implied consent he must be given the opportunity, when he regains consciousness, to revoke his consent. In such a case, evidence of the blood test and its result would not be admissible. However, a person revoking his consent after he regains consciousness then becomes liable to suspension of his driver‘s license pursuant to [the implied consent statute].” (Emphasis supplied.)
This is what Presiding Judge Deen and I contend to be the correct interpretation of the Georgia statute. Each person using the highway must be guaranteed the same rights. The majority in both this case and the Williams case holds to the contrary.
In this case, Division 1 of the majority opinion would have us interpret
Subsection (a)(4) states: “Upon the request of the person who shall submit to a chemical test or tests at the request of a law enforcement officer, full information concerning the test or tests shall be made available to him or his attorney. The arresting officer at the time of arrest shall advise the person arrested of his rights to a chemical test or tests according to this section.” (Emphasis supplied.)
Subsection (a)(3) deals with the inability of a person to find a qualified person to give him the additional test. If he is unable to locate such a person after a diligent try, not because he is unconscious but because no qualified person is available, then the section controls. I simply cannot believe that the majority claims that “justifiable failure” pertains to an unconscious person. The legislature never in its wildest imagination meant for this statute to apply to an unconscious person. How can any fair-minded person who believes in equal protection of the laws stand on such a contention? How can any fair-minded person who believes in equal protection of the laws contend that, because a man is unconscious, his failure to obtain an additional test is “justifiable.” Example: “A” and “B” have a wreck in front of a hospital and both are under the influence. “A” is unconscious; “B” is not; and at a police officer‘s direction, both “A” and “B” have their blood drawn and tested. “B” can and does get an additional test because he is conscious. But “A” cannot because he is unconscious. The legislature never meant for
The majority contends that this statute is procedural in nature. I prefer to describe it as one directing the law enforcement officer as to how evidence may be obtained. Anything not expressly set out in this statute is not to be supplied by judicial law-making. In the case of Puller v. Municipality of Anchorage, Alaska Sup. Ct. 2-24-78, the court dealt with a person refusing to take a breathalyzer test. It held, that, in view of the fact the implied consent statute did not expressly provide that a refusal would be admissible evidence at trial, the refusal could not be used. The court went on to say: “An intrinsic aid to statutory construction is found in the maxim expressio unius est exclusio alterius. The maxim establishes the inference that, where certain things are designated in a statute, ‘all omissions should be understood as exclusions.’ The maxim is one of long-standing application, and it is essentially an application of common sense and logic.” This is true in our two statutes here,
In my opinion there is also a due process violation involved. Bell v. Burson, 402 U. S. 535 (91 SC 1586, 29 LE2d 90) (1971), is a case in which the U. S. Supreme Court said Georgia‘s Motor Vehicle Safety Responsibility Act was violative of procedural due process. The portion of the Act the court was dealing with concerned the suspension of an owner‘s registration plate and driver‘s license. Suspension would occur when an uninsured motorist involved in an accident did not post security for the amount of damages claimed by an aggrieved party. The statutory scheme did not provide for a pre-suspension determination of fault or responsibility for the accident. The court held that, before the state may deprive an individual of his license and registration, it must provide a procedure for determining the question whether there is a reasonable possibility of a judgment being rendered against him as a result of the accident. On page 539 of the Bell case, supra, the court says, “If the statute barred the issuance of licenses to all motorists who did not carry liability insurance or who did not post security, the statute would not, under our cases, violate the Fourteenth Amendment. [Cits.] It does not follow, however, that the amendment also permits the Georgia statutory scheme where not all motorists, but rather only motorists involved in accidents, are required to post security under penalty of loss of the licenses.” The court held “that the failure of the present Georgia scheme to afford the petitioner a prior hearing on liability of the nature we have defined denied him procedural due process in violation of the Fourteenth Amendment.”
There is the same problem involved in Georgia‘s “implied consent” statute. In carrying out the provisions of this statute, two entirely different procedural processes are used. After being advised of his rights under the statute, a conscious individual can refuse to take the breath test. If he consents to the test, he has the additional right to have someone of his own choice test his blood and/or urine. But if an individual is unconscious, an entirely different procedure is used. The officer simply has
I am authorized to state that Presiding Judge Deen joins in this dissent.