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BEAMAN v. THE STATE.
62678.
CARLEY, Judge.
Vehicular homicide. Douglas Superior Court. Before Judge Noland.
Appellant appeals from his conviction of homicide by vehicle in the first degree, Code Ann. 68A-903 (a).
517, 519 (4 SE2d 75) (1939). It was not error to deny appellant's motion for directed verdict. Compare Brown v. State, 152 Ga. App. 273 (262 SE2d 497) (1979).
2. Appellant asserts that evidence concerning the level of alcohol in his blood was erroneously admitted into evidence over his objection that to admit such evidence in the case would result in an unconstitutional application of Code Ann. 68A-902.1. Apparently at the time appellant was "advised" of his rights under Code Ann. 68A-902.1 by the officer investigating the collision, appellant was unconscious. A blood sample was then taken from the unconscious appellant. It is appellant's contention that the implied consent law may not be constitutionally applied to an unconscious driver and that evidence relative to this blood sample, taken while he was unconscious, was therefore erroneously admitted. This same argument was considered and rejected in Smith v. State, 143 Ga. App. 347, 348 (1) (238 SE2d 698) (1977). Despite subsequent arguments that Smith, supra, should be overruled, it remains the law of this state. See Williams v. State, 145 Ga. App. 81 (243 SE2d 614) (1978); Thornberry v. State, 146 Ga. App. 827 (247 SE2d 495) (1978). We reaffirm the holding in Smith in the instant case. "The police investigator is often faced with the problem of preserving evidence of a crime which he believes upon reasonable grounds to have been committed. The investigator in this case was faced with evidence that an apparent homicide had occurred, the driver of the suspect vehicle either had been drinking or it appeared he had been drinking. Time was passing and the blood-alcohol level, by natural law, was changing. The suspect was either unconscious or unable to communicate with the officer. The officer acted under the authority of the implied consent law to take the blood specimen. Even though [the appellant was unconscious at the time he was advised] of the right to an independent test, we do not believe that invalidated the procedure or rendered the results of the test inadmissible." Smith, 143 Ga. App. at 349, supra. Accordingly, this enumeration is meritless.
3. Error is enumerated upon the trial court's refusal to give the following charge: "[W]here any chemical tests of bodily fluid is made, the person tested may have a physician, or a qualified technician, chemist, registered nurse or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer. The arresting officer at the time of arrest shall advise the person arrested of his rights to a chemical test or tests according to our law." We find no error in the refusal to give this request. Code Ann. 68A-902.1 (a), from which the requested charge was taken, deals with the admissibility of chemical tests. The question of the admissibility of
App.) JANUARY TERM, 1982. 131
evidence is a question for the trial court not the jury. See generally Hotchkiss v. Newton, 10 Ga. 560 (1851). As discussed in Division 2 above, the trial court correctly ruled that appellant's blood test was not inadmissible into evidence because he was unconscious at the time the sample was taken. The trial court having correctly performed its function and determined the legal question of the admissibility of evidence under Code Ann. 68A-902.1 (a), the only "relevant" issue for the jury was the weight and effect to give that evidence. Thus, the only "relevant" jury issue with regard to the admissible test results was the "presumption" to be given to those results under Code Ann. 68A-902.1 (b). The trial court gave its charge on Code Ann. 68A-902.1 (b), the only "relevant" jury issue in the case. The requested change in the language of Code Ann 68A-902.1 (a) was not erroneously refused. The request was "relevant" only on the issue of the underlying admissibility of the evidence and was totally irrelevant to any jury issue in the case. See generally Johnson v. State, 151 Ga. App. 887, 888 (4) (262 SE2d 201) (1979).
4. Appellant enumerates as error the failure of the trial court to give a requested charge on the "lesser included offense" of vehicular homicide in the second degree, Code Ann. 68A-903 (b). Assuming without deciding that Code Ann. 68A-903 (b) may in certain circumstances be a lesser included offense of Code Ann. 68A-903 (a), the evidence in the instant case did not "reasonably" raise the issue that the victim's death was caused by any violation of the Uniform Rules of the Road other than appellant's driving under the influence. The state's uncontroverted evidence clearly showed appellant was in violation of Code Ann. 68A-902, driving under the influence, at the time of the collision. Appellant offered no evidence whatsoever. Thus, there is not the "slightest suggestion" in the evidence that the victim's death in the collision was caused by any violation other than appellant's driving under the influence, pretermitting any other traffic violations that appellant may have been in violation of in his drunken state. Under this posture of the evidence there were only two possible verdicts, guilty as charged of first degree vehicular homicide or a complete acquittal. Accordingly it was not error to refuse appellant's written requests to charge. Quick v. State, 139 Ga. App. 440, 443 (5) (228 SE2d 592) (1976). See also Collins v. State, 146 Ga. App. 138 (2) (245 SE2d 488) (1978); Ewald v. State, 156 Ga. App. 68, 70 (6) (274 SE2d 31) (1980).
5. The trial court did not err in admitting testimony concerning information related to a police officer, where the testimony was admitted for the purpose of explaining the officer's conduct. Code Ann. 38-306. Mooney v. State, 243 Ga. 373, 393-394 (254 SE2d 337) (1979).
William A. Foster III, District Attorney, Barbara V. Tinsley, Assistant District Attorney, for appellee.
W. O'Neal Dettmering, Jr., for appellant.
DECIDED JANUARY 19, 1982 -- REHEARING DENIED FEBRUARY 2, 1982 -- CERT. APPLIED FOR.
Thursday May 21 20:51 EDT


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