Fоllowing a jury trial, defendant was convicted of homicide by vehicle in the first degree. She appeals. Held:
1. Defendant moved to suppress the results of a blood alcohol test which was taken approximately two hours after the collision. (The State demonstrated that the conсentration of alcohol in defendant’s blood at that time was .11 grams percent.) In this regard, defendant argued that the arresting officer did not havе probable cause *310 to arrest her and that, therefore, the subsequent seizure of defendant’s blood sample was tainted. The motion to suppress was denied.
In her first enumeration of error, defendant contends the trial court erred in denying the motion to suppress. This contention is without merit.
“A ‘warrantless arrest’ is constitutionally valid if, at the moment the arrest is made, the facts and circumstances within the knowledge of the arresting officеrs and of which they had reasonable trustworthy information were sufficient to warrant a prudent man in believing that the accused had committed ... an offense. [Cits.]”
Callaway v. State,
The collision occurred on Deсember 12, 1990, at approximately 4:30 p.m. Conducting an investigation at the scene of the collision, the officer learned that defendant momеntarily drove her vehicle on the wrong side of the road and hit the vehicle in which the victim was a passenger head on. The victim was not wearing а seat belt. She “rolled” out of the other vehicle after the collision and was found on the side of the road. She suffered a fractured skull and multiple trauma and died en route to the hospital.
The arresting officer noticed an odor of alcohol on the defendant’s breath and inside her vehicle. Defendant told the officer that she had had three beers. She was transported to the hospital where she was treated for her injuries. About two hours after the collision, the officer arrested defendant on suspicion of driving under the influence of alcohol, driving on the wrоng side of the road, driving without a driver’s license and vehicular homicide. Following her arrest, defendant gave her consent for a blood alcоhol test.
We have no hesitation in concluding that, “ ‘[b]ased on these facts, the warrantless arrest was both reasonable and necessary tо prevent a failure of justice.’ [Cit.]”
Waits v. State,
The arrest of defendant was legal. It fоllows that the seizure of defendant’s blood was not tainted and that the trial court did not err in denying defendant’s motion to suppress.
2. Defendant asserts that the trial court erred in failing to strike the testimony of an expert witness who testified that the concentration of alcohol in defendant’s bloоd was .11 grams percent. In this regard, defendant points out that the blood sample was taken more *311 than two hours after the collision and argues thаt the witness failed to specify the concentration of alcohol in her blood at the time of the collision. This assertion is without merit.
Although the еxpert did not pinpoint the amount of alcohol in defendant’s blood at the time of the collision, he testified that it takes approximately 30 minutes for the level of blood alcohol to peak and that it diminishes over time. The clear implication of the expert’s testimony was thаt defendant’s blood alcohol level exceeded .11 grams percent at the time of the collision. At any rate, the expert’s testimony was admissible, its weight was a matter for the jury to decide. See
McGhee v. State, 253
Ga. 278, 280 (5) (
3. Defendant contends she should not be deemed guilty of homicide by vehicle in the first degree because the victim was not wearing a seat belt at the time of the collision. She recognizes that the victim’s failure to wear a seat belt is not to be “considered evidence of negligence” or have a bearing “on any question of liability. ...” OCGA § 40-8-76.1 (d). She insists, however, that the victim’s failure to wеar a seat belt should be considered in determining the “cause” of death. In this regard, she asserts that her conduct was not the proximate cаuse of the victim’s death since the victim was not wearing a seat belt. We disagree.
In our view, the victim’s failure to wear a seat belt can play no role in determining whether defendant is guilty of vehicular homicide. “[The victim’s] failure to wear a seat belt may arguably be a proximate cause of [her] death but was not an event that can sensibly be described as an intervening cause of [her] injuries; it was, rather, a condition precedent — аmong many — to the accident, making [her], under the facts of this case, more vulnerable to injury. We can imagine that in another case, the wearing of a seat belt might contribute to the death of a victim, but it hardly could be claimed that this circumstance would absolve the defendant as constituting an intervening cause.
“So long as the defendant’s negligence proximately caused the death of another, the crime has been committed, even if there are other factors which also are proximate causes of the death. As opposed to the civil contеxt, in which compensating deserving victims is the aim, in the criminal context it simply is not relevant that the victim was negligent, unless the defendant’s conduct did not substantially contribute to the cause of death. [Cits.]”
State v. Dodge,
As one court put it, quoting Perkins, Criminal Law (3d ed.), pp. 785, 790, “ ‘[Njegligence on the part of the deceased . . . has no bearing upon either responsibility or imputability in the determination of guilt or innocence ... if it was a substantial factor thereof, an act which is a direct cause of a socially harmful occurrence is always a
*312
proximate cause.’ ”
People v. Richardson,
“Without question, the [victim] would be alive today were it not for the fact that defendant crossed the center line . . . [The victim’s] failure to wear a safety belt does not bear on the criminal conduct of defendant. . . .”
People v. Richardson,
Even if we were to hold that the victim’s failure to use a seat belt should play a role in determining defendant’s guilt, the record is devoid of evidence demonstrating that the victim would not have died if she had worn a seat belt. Thus, in any event, the jury was not prеsented with evidence enabling it to determine what effect the non-use of a seat belt had on the issue of causation. See
Boatwright v. Czerepinski,
4. The evidenсe was sufficient to enable any rational trier of fact to find defendant guilty of homicide by vehicle in the first degree beyond a reasonable doubt.
Howard v. State,
Judgment affirmed.