Williams v. State

Court of Appeals of Georgia

Williams v. State

243 S.E.2d 614, 145 Ga. App. 81, 1978 Ga. App. LEXIS 1872

CourtCourt of Appeals of Georgia

DecidedFebruary 28, 1978

Docket54830

StatusPublished

Cited by11 cases

This text of 243 S.E.2d 614 (Williams v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Williams v. State, 243 S.E.2d 614, 145 Ga. App. 81, 1978 Ga. App. LEXIS 1872 (Ga. Ct. App. 1978).

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Opinions

McMurray, Judge.

Defendant, while driving an automobile with a passenger therein, was involved in a collision in which the automobile left the road and ran into a culvert. The passenger and two dogs also in the car were killed. Defendant was carried to the hospital and approximately two hours after the incident a state patrolman went to the hospital and requested a blood sample to determine his blood alcohol content. The state patrolman read the implied consent law to him and the blood sample was taken even though there is no conclusive evidence that he consented to same, since "[h]e was moaning and groaning [82]*82and he never talked to me after that.” Defendant was indicted and convicted for the offenses of homicide by vehicle while under the influence of alcohol and driving with a revoked license. He was sentenced to serve three years in the state penitentiary for the offense of homicide by vehicle and 12 months confinement as to the other charge "to run concurrent” with it. Motion for new trial as amended was filed and denied, and defendant appeals. Held:

1. Defendant admitted he was driving the automobile and the evidence is conclusive that the passenger died as a result of the collision of the automobile with the culvert. There was ample evidence that the defendant was under the influence of alcohol and his blood was shown to contain .20 grams percent ethyl alcohol, which is more than sufficient to authorize the jury’s finding that the defendant was driving the automobile under the influence of alcohol. See Herndon v. State, 132 Ga. App. 747 (3) (209 SE2d 26); Veasley v. State, 142 Ga. App. 863 (1) (237 SE2d 464).

2. Defendant moved to suppress the evidence with reference to the blood alcohol test, his blood having been taken while he was in a semi-conscious condition. He also properly objected to the evidence when it was presented during the trial. He first contends that he was not under technical arrest at that time. But there was primarily probable cause for his arrest, and his liberty was restrained no matter how slight at the moment which would constitute an arrest. See Clements v. State, 226 Ga. 66 (2) (172 SE2d 600); Strong v. State, 231 Ga. 514, 518 (202 SE2d 428).

Further, even though defendant contends he was forced to give evidence that was self-incriminating in violation of the Fifth Amendment of the United States Constitution in that he did not give his consent, actual or implied, to the taking of the blood, this exact issue has been ruled upon with reference to the taking of the blood as not being other than a minor intrusion upon his body so as not to cause the person to be a witness against himself within the meaning of the Fifth Amendment protection. See Schmerber v. California, 384 U. S. 757 (86 SC 186, 16 LE2d 908); Strong v. State, 231 Ga. 514, 518, supra. [83]*83Regardless of the fact that defendant was in a semi-conscious condition and did not give his consent when the blood sample was taken, there is no merit in his constitutional attacks that his rights were violated and that the blood test should have been suppressed. See Smith v. State, 143 Ga. App. 347 (238 SE2d 698).

Submitted October 31, 1977 Decided February 28, 1978. Edge & Edge, Eugene F. Edge, for appellant. Charles A. Pannell, Jr., District Attorney, Stephen A. Williams, W. Michael B. Stoddard, Assistant District Attorneys, for appellee.

3. Defendant next contends that the blood sample which was taken two hours after the collision and carried to the patrol barracks and placed in a refrigerator with other samples on October 18,1976, and was not carried to the State Crime Laboratory until November 15, 1976, should have been excluded is without merit inasmuch as there is no evidence that it was in any way tampered with during this period; the evidence shows it had been sealed and not unsealed until tested and positive testimony that no one had tampered with the sample, as well as expert opinion that under the above circumstances the alcoholic content would remain the same. A chain of custody pursuant to the requirements of Pittman v. State, 110 Ga. App. 625 (1) (139 SE2d 507), and Abercrombie v. State, 138 Ga. App. 536 (2) (226 SE2d 763), was sufficient to show a proper chain of custody here.

Judgment affirmed.

Bell, C. J., Quillian, P. J., Webb, Shulman, Banke, and Birdsong, JJ., concur. Deen, P. J., and Smith, J., dissent.

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McMurray, Judge.

Defendant, while driving an automobile with a passenger therein, was involved in a collision in which the automobile left the road and ran into a culvert. The passenger and two dogs also in the car were killed. Defendant was carried to the hospital and approximately two hours after the incident a state patrolman went to the hospital and requested a blood sample to determine his blood alcohol content. The state patrolman read the implied consent law to him and the blood sample was taken even though there is no conclusive evidence that he consented to same, since "[h]e was moaning and groaning [82]*82and he never talked to me after that.” Defendant was indicted and convicted for the offenses of homicide by vehicle while under the influence of alcohol and driving with a revoked license. He was sentenced to serve three years in the state penitentiary for the offense of homicide by vehicle and 12 months confinement as to the other charge "to run concurrent” with it. Motion for new trial as amended was filed and denied, and defendant appeals. Held:

1. Defendant admitted he was driving the automobile and the evidence is conclusive that the passenger died as a result of the collision of the automobile with the culvert. There was ample evidence that the defendant was under the influence of alcohol and his blood was shown to contain .20 grams percent ethyl alcohol, which is more than sufficient to authorize the jury’s finding that the defendant was driving the automobile under the influence of alcohol. See Herndon v. State, 132 Ga. App. 747 (3) (209 SE2d 26); Veasley v. State, 142 Ga. App. 863 (1) (237 SE2d 464).

2. Defendant moved to suppress the evidence with reference to the blood alcohol test, his blood having been taken while he was in a semi-conscious condition. He also properly objected to the evidence when it was presented during the trial. He first contends that he was not under technical arrest at that time. But there was primarily probable cause for his arrest, and his liberty was restrained no matter how slight at the moment which would constitute an arrest. See Clements v. State, 226 Ga. 66 (2) (172 SE2d 600); Strong v. State, 231 Ga. 514, 518 (202 SE2d 428).

Further, even though defendant contends he was forced to give evidence that was self-incriminating in violation of the Fifth Amendment of the United States Constitution in that he did not give his consent, actual or implied, to the taking of the blood, this exact issue has been ruled upon with reference to the taking of the blood as not being other than a minor intrusion upon his body so as not to cause the person to be a witness against himself within the meaning of the Fifth Amendment protection. See Schmerber v. California, 384 U. S. 757 (86 SC 186, 16 LE2d 908); Strong v. State, 231 Ga. 514, 518, supra. [83]*83Regardless of the fact that defendant was in a semi-conscious condition and did not give his consent when the blood sample was taken, there is no merit in his constitutional attacks that his rights were violated and that the blood test should have been suppressed. See Smith v. State, 143 Ga. App. 347 (238 SE2d 698).

Submitted October 31, 1977 Decided February 28, 1978. Edge & Edge, Eugene F. Edge, for appellant. Charles A. Pannell, Jr., District Attorney, Stephen A. Williams, W. Michael B. Stoddard, Assistant District Attorneys, for appellee.

3. Defendant next contends that the blood sample which was taken two hours after the collision and carried to the patrol barracks and placed in a refrigerator with other samples on October 18,1976, and was not carried to the State Crime Laboratory until November 15, 1976, should have been excluded is without merit inasmuch as there is no evidence that it was in any way tampered with during this period; the evidence shows it had been sealed and not unsealed until tested and positive testimony that no one had tampered with the sample, as well as expert opinion that under the above circumstances the alcoholic content would remain the same. A chain of custody pursuant to the requirements of Pittman v. State, 110 Ga. App. 625 (1) (139 SE2d 507), and Abercrombie v. State, 138 Ga. App. 536 (2) (226 SE2d 763), was sufficient to show a proper chain of custody here.

Judgment affirmed.

Bell, C. J., Quillian, P. J., Webb, Shulman, Banke, and Birdsong, JJ., concur. Deen, P. J., and Smith, J., dissent.

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243 S.E.2d 614, 145 Ga. App. 81, 1978 Ga. App. LEXIS 1872, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-state-gactapp-1978.

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