(Code 1933, § 68A-903, enacted by Ga. L. 1974, p. 633, § 1; Ga. L. 1976, p. 977, § 1; Ga. L. 1982, p. 1694, §§ 1, 3; Ga. L. 1983, p. 1000, § 15; Ga. L. 1990, p. 2048, § 5; Ga. L. 1992, p. 2093, § 1; Ga. L. 1999, p. 391, § 9; Ga. L. 2008, p. 1164, § 2/SB 529.)
Cross references.- Homicide generally, § 16-5-1 et seq.
Suspension of driver's license for conviction for homicide by vehicle, § 40-5-54.
Maintenance of separate causes of action for personal injury and property damage caused by single act of wrongful or negligent operation of motor vehicle, § 51-1-32.
Editor's notes.- Ga. L. 1999, p. 391, § 2, not codified by the General Assembly, provides: "This Act shall be known and may be cited as 'Heidi's Law'."
Ga. L. 2008, p. 1164, § 6/SB 529, not codified by the General Assembly, provides that the amendment to this Code section shall apply to all offenses committed on or after July 1, 2008.
Law reviews.- For article discussing developments in Georgia law of homicide by vehicle in 1977, see 29 Mercer L. Rev. 55 (1977). For survey article on criminal law and procedure for the period from June 1, 2002 through May 31, 2003, see 55 Mercer L. Rev. 117 (2003).
JUDICIAL DECISIONSANALYSIS
General Consideration
Constitutionality.
- Paragraph (a)(5) (now (a)(6)) of O.C.G.A. § 40-6-391 is not void as creating an impermissible irrebuttable presumption that a person with any amount of marijuana in his or her system is an unsafe driver. Stevenson v. State, 264 Ga. 892, 453 S.E.2d 18 (1995).
Classification of homicides by vehicle constitutional.
- Classification by the General Assembly of homicides by vehicle resulting from violations of Ga. L. 1974, p. 633 (see now O.C.G.A. Ch. 6, T. 40) differently from other homicides in the commission of unlawful acts is a constitutional classification. State v. Edwards, 236 Ga. 104, 222 S.E.2d 385 (1976).
Classification did not violate equal protection.
- Trial court did not err in denying the defendant's motion in arrest of judgment since the indictment issued against the defendant for first-degree vehicular homicide was not void because the predicate offense mentioned in it, O.C.G.A. § 40-6-391, made it easier to convict those drivers who were under 21-years-old and who had an alcohol concentration of .02 or more since the disparate treatment based on age did not violate the defendant's equal protection rights under the state and federal constitutions; rather the predicate offense was rationally related to the state's legitimate interest in deterring younger, more inexperienced drivers from drinking and driving. David v. State, 261 Ga. App. 468, 583 S.E.2d 135 (2003).
Trial court erred by concluding that O.C.G.A. § 40-6-393(b) was unconstitutional on equal protection grounds because the defendant's equal protection claim failed for essentially the same reason the substantive due process claim failed; the defendant failed to show that the different approach taken in § 40-6-393(b) lacked a rational basis when compared to the approaches taken to the other types of vehicular homicide. State v. Holland, 308 Ga. 412, 841 S.E.2d 723 (2020).
Reckless driving charges not affected by unconstitutionality of
§ 40-6-391(a)(6). - Fact that O.C.G.A. § 40-6-391(a)(6) was held unconstitutional as a denial of equal protection did not apply to require dismissal of charges against the defendant that the defendant committed reckless driving in violation of O.C.G.A. § 40-6-390(a) and first degree vehicular homicide in violation of O.C.G.A. § 40-6-393(a) by reckless driving; the charges merely included the fact that marijuana was found in the defendant's blood because it was relevant to a determination that the defendant drove "in reckless disregard for the safety of persons or property." Ayers v. State, 272 Ga. 733, 534 S.E.2d 76 (2000).
No substantive due process violation.
- Trial court erred in concluding that O.C.G.A. § 40-6-393(b) was unconstitutional on substantive due process grounds because the requirement that drivers stay on the scene and provide identification can simplify resolution of any related civil claims and conserves law enforcement resources and is a reasonable, and not arbitrary or discriminatory, explanation for subjecting hit-and-run drivers who cause a fatal accident to prosecution for first-degree vehicular homicide. State v. Holland, 308 Ga. 412, 841 S.E.2d 723 (2020).
Offense created a foreseeable risk of death by definition.
- Although a jury was not explicitly instructed that the jury was required to find that a defendant was acting in a dangerous manner in order to convict the defendant of felony murder based on theft by receiving, the jury did in fact make such a finding when the jury found the defendant guilty of vehicular homicide by reckless driving because that offense, by definition, created a foreseeable risk of death. State v. Kelly, 290 Ga. 29, 718 S.E.2d 232 (2011).
Conduct of accused must be cause of death.
- Subsections (a) and (b) of O.C.G.A. § 40-6-393 both provide that conduct of an accused must be the cause of death in order to warrant a conviction. Williams v. State, 165 Ga. App. 831, 302 S.E.2d 736 (1983).
Because the evidence presented by the state was insufficient to convict the defendant of first-degree vehicular homicide under O.C.G.A. § 40-6-393(a) predicated on a violation of O.C.G.A. § 40-6-270(b), and specifically, the state failed to prove that the defendant's failure to remain at the scene of the accident contributed to the death of the victim, but instead the evidence showed that the victim died on impact, the defendant's vehicular homicide conviction was reversed and the case was remanded for resentencing on the lesser included offense of felony hit-and-run. Henry v. State, 284 Ga. App. 893, 645 S.E.2d 32 (2007).
Section provides that homicide either felony or misdemeanor.
- Subsection (a) of Ga. L. 1974, p. 633, § 1 (see now O.C.G.A. § 40-6-393) provides that "reckless driving" resulting in death is homicide by vehicle in the first degree and is a felony. Subsection (b) of those provisions generally provides that other homicides by vehicle are of the second degree and is a misdemeanor. Berrian v. State, 139 Ga. App. 571, 228 S.E.2d 737 (1976).
Application of subsection (b).
- Implicit in the directive of subsection (b) of O.C.G.A. § 40-6-393, pertaining to the violation of any provision of the title, is the requirement that the provision set forth a specific violation. State v. Nix, 220 Ga. App. 651, 469 S.E.2d 497 (1996).
Elements that must be proved.
- Language of subsection (c) of O.C.G.A. § 40-6-393 clearly requires that the state prove not only that the accused was operating a motor vehicle after having been declared a habitual violator, but that such act caused the death of another person. Everett v. State, 216 Ga. App. 444, 454 S.E.2d 620 (1995).
Use of DUI statute as predicate offense.
- Trial court did not err in denying the defendant's motion in arrest of judgment as the indictment sufficiently alleged that the defendant violated O.C.G.A. § 40-6-393(a) and caused the death of another person through the violation of O.C.G.A. § 40-6-391, the predicate offense, and the indictment included the causation element by alleging that the violation of O.C.G.A. § 40-6-391 was the cause of the passenger's death after the defendant, 17-years-old, lost control of the defendant's vehicle while driving with a blood alcohol level of .08. David v. State, 261 Ga. App. 468, 583 S.E.2d 135 (2003).
Because DUI was a predicate offense set out in the indictment against the defendant only as an element of the offense of vehicular homicide, in violation of O.C.G.A. § 40-6-393(a), and not as a separate crime for which the defendant risked separate criminal liability, a trial court did not err by denying the defendant's plea in bar because, as a felony offense, prosecution on the vehicular homicide counts were commenced within four years after the commission of the crime as required by O.C.G.A. § 17-3-1(c); the expiration of the limitations period for the driving under the influence counts did not preclude a prosecution for vehicular homicide. Leachman v. State, 286 Ga. App. 708, 649 S.E.2d 886, cert. denied, No. S07C1816, 2007 Ga. LEXIS 768 (Ga. 2007).
Predicating murder charge on reckless disregard.
- Murder charge cannot be predicated upon homicide resulting from "reckless disregard for . . . safety of persons," as that phrase is used in the reckless driving provision. Foster v. State, 239 Ga. 302, 236 S.E.2d 644 (1977).
Lesser included offenses.
- Driving on the wrong side of the road is a lesser included offense of second degree vehicular homicide. Rank v. State, 179 Ga. App. 28, 345 S.E.2d 75 (1986).
Offense of driving under the influence was a lesser included offense of first degree vehicular homicide, and conviction of both offenses was proscribed. Duncan v. State, 183 Ga. App. 368, 358 S.E.2d 910 (1987).
Defendant could not be prosecuted for the offense of improper passing and vehicular homicide since the defendant had already pled guilty to a charge of improper passing and paid a fine because improper passing was necessarily a lesser included offense of vehicular homicide. State v. Williams, 214 Ga. App. 701, 448 S.E.2d 700 (1994).
Rule of lenity did not apply to hit-and-run and vehicular homicide.
- Rule of lenity did not apply to the two felony charges of hit-and-run under O.C.G.A. § 40-6-270(b) and vehicular homicide under O.C.G.A. § 40-6-393(b) because it was essential to the rule that both crimes be proved with the same evidence. The element of causation of the accident was essential to prove first degree vehicular homicide, but was not necessary to prove felony hit-and-run. Rouen v. State, 312 Ga. App. 8, 717 S.E.2d 519 (2011).
Pre-1979 section was not arbitrary, even though there was no crime punishing serious physical injury as reckless driving and driving under the influence of alcohol were crimes in and of themselves and when applicable where no death resulted. Head v. State, 246 Ga. 360, 271 S.E.2d 452 (1980).
Adequate notice.
- Notice given that driving under the influence of alcohol is a crime is adequate. Head v. State, 246 Ga. 360, 271 S.E.2d 452 (1980).
Mislabeled count.
- Trial court erred in entering judgment and imposing a sentence on an allegedly mislabeled count under the guise that the jury found the defendant guilty of homicide by vehicle in the first degree instead of involuntary manslaughter, when the jury specifically acquitted the defendant on another charge of homicide by vehicle in the first degree based upon the same act and against the same victim. Taylor v. State, 295 Ga. App. 689, 673 S.E.2d 7, aff'd, 286 Ga. 328, 687 S.E.2d 409 (2009).
Statutory basis for vehicular homicide prosecution.
- Vehicular homicide must now be prosecuted under Ga. L. 1976, p. 977 § 1, (see now O.C.G.A. § 40-6-393) or the murder provision, former Code 1933, § 26-110 (see now O.C.G.A. § 16-5-1). State v. Foster, 141 Ga. App. 258, 233 S.E.2d 215, aff'd, 239 Ga. 302, 236 S.E.2d 644 (1977).
O.C.G.A. § 40-6-393 does not preclude a malice murder charge in vehicular deaths. Chester v. State, 262 Ga. 85, 414 S.E.2d 477 (1992).
Homicide caused by violating reckless driving provision, Ga. L. 1974, p. 633, § 1 (see now O.C.G.A. § 40-6-390), must be prosecuted under Ga. L. 1976, p. 977, § 1 (see now O.C.G.A. § 40-6-393), and not as for murder or involuntary manslaughter. State v. Foster, 141 Ga. App. 258, 233 S.E.2d 215, aff'd, 239 Ga. 302, 236 S.E.2d 644 (1977).
Offenses which do not underlie second degree vehicular homicide.
- Neither driving under the influence nor reckless driving can act as the underlying traffic offense for a conviction of second degree vehicular homicide. McKinney v. State, 204 Ga. App. 323, 419 S.E.2d 339 (1992).
Evidence of reckless driving supported vehicular homicide conviction.
- Evidence that the defendant drove after the defendant admittedly consumed methadone, Xanax (alprazolam), and Percocet and that the defendant crossed over the center line of the road in violation of O.C.G.A. § 40-6-40(a) and collided with another vehicle, killing the driver, was sufficient to show the defendant drove while impaired and drove recklessly under O.C.G.A. § 40-6-390(a), supporting the defendant's vehicular homicide conviction under O.C.G.A. § 40-6-393(a). Wright v. State, 304 Ga. App. 651, 697 S.E.2d 296 (2010).
Guilty verdicts not mutually exclusive.
- Although verdicts finding the defendant guilty of first degree vehicular homicide in the deaths of two victims and of second degree vehicular homicide in the deaths of two other victims were inconsistent, the verdicts were not mutually exclusive based on the contention that, by finding second degree vehicular homicide, the jury must have found that the defendant did not drive recklessly, thereby excluding the defendant's conviction for first degree vehicular homicide. Davis v. State, 245 Ga. App. 402, 538 S.E.2d 67 (2000).
Verdict not inconsistent with felony murder verdict.
- Verdicts convicting a defendant of felony murder and vehicular homicide were not inconsistent because the felony murder, and the underlying aggravated assault, were based on the defendant driving a vehicle at the victim's vehicle, while the vehicular homicide charge was based on the defendant causing the victim's death by intentionally changing lanes when it was not safe to do so, meaning that the two crimes were based on distinct underlying acts, and it was neither legally nor logically impossible to convict the defendant of both crimes. Mills v. State, 280 Ga. 232, 626 S.E.2d 495 (2006).
Intent.
- When the case arose from an intersection collision between a car driven by the defendant and another car, a red Mustang, and when the defense's contentions at trial were that the defendant thought the light was green, that the defendant had no intention of running a red light or of causing the victim's death, and that if the defendant did run the red light, it was the result of legal mistake or accident, the trial court did not err by charging the jury on the intent required to commit the offenses charged; the state was required to prove the intent to do the act which resulted in the violation of the law and not the intent to commit the crime itself. Hoffer v. State, 192 Ga. App. 378, 384 S.E.2d 902, cert. denied, 192 Ga. App. 902, 384 S.E.2d 902 (1989).
Involuntary manslaughter distinguished.
- Trial court did not err in failing to compel the state to prosecute the defendant under the involuntary manslaughter statute rather than the vehicular homicide statute for the General Assembly made a rational distinction between the two offenses. Williams v. State, 171 Ga. App. 546, 320 S.E.2d 389 (1984).
Jurisdiction.
- As the focus of a jurisdictional statute was a charge against a specific person, it divested a probate court of jurisdiction over an underlying misdemeanor offense, like reckless driving, when the person was charged with felony vehicular homicide. State v. Perkins, 276 Ga. 621, 580 S.E.2d 523 (2003).
Transfer of case involving juveniles to superior court.
- Evidence that a juvenile had a history of using marijuana and other drugs, had used marijuana before the juvenile lost control of a car the juvenile was driving while racing another car on a public street, causing a multi-car collision in which two people died, had challenged other people to automobile races on several occasions, violated the conditions of the juvenile's driver's license by driving with a non-family member, and used drugs after the accident was sufficient to support the juvenile court's judgment that the juvenile was not amenable to treatment in the juvenile court system and that the interests of the juvenile and the community would be better served if the case was transferred to the superior court. In the Interest of W.N.J., 268 Ga. App. 637, 602 S.E.2d 173 (2004).
Application to nondrivers.
- Nothing in the statutory language of O.C.G.A. § 40-6-393(c) prohibits a vehicular homicide conviction against a pedestrian or a non-driver. Indeed, an individual may be a party to a violation of the traffic laws without driving. Nelson v. State, 317 Ga. App. 527, 731 S.E.2d 770 (2012).
Evidence insufficient to show for conviction based on failure to stop and render aid.
- Defendant was entitled to have the conviction for homicide by vehicle based on failure to stop and render aid set aside because there was no evidence that the victim would have survived the injuries if the defendant had stopped to assist the victim. Walker v. State, 293 Ga. 709, 749 S.E.2d 663 (2013).
Cited in Torley v. State, 141 Ga. App. 366, 233 S.E.2d 476 (1977); Brock v. State, 146 Ga. App. 78, 245 S.E.2d 442 (1978); Wilson v. State, 147 Ga. App. 560, 249 S.E.2d 361 (1978); Brown v. State, 152 Ga. App. 273, 262 S.E.2d 497 (1979); Gooch v. State, 155 Ga. App. 708, 272 S.E.2d 572 (1980); Department of Human Resources v. J.R.S., 161 Ga. App. 262, 287 S.E.2d 713 (1982); Beaman v. State, 161 Ga. App. 129, 291 S.E.2d 244 (1982); Walker v. State, 163 Ga. App. 638, 295 S.E.2d 574 (1982); Johnson v. State, 170 Ga. App. 433, 317 S.E.2d 213 (1984); Cunningham v. State, 255 Ga. 35, 334 S.E.2d 656 (1985); Cauthen v. State, 177 Ga. App. 565, 340 S.E.2d 199 (1986); Laymac v. State, 181 Ga. App. 737, 353 S.E.2d 559 (1987); Brown v. State, 182 Ga. App. 682, 356 S.E.2d 663 (1987); Watkins v. State, 191 Ga. App. 87, 381 S.E.2d 45 (1989); Scavonne v. State, 193 Ga. App. 603, 388 S.E.2d 735 (1989); Jackson v. State, 198 Ga. App. 261, 401 S.E.2d 289 (1990); State v. Johnson, 270 Ga. 111, 507 S.E.2d 443 (1998); In the Interest of A.L.S., 261 Ga. App. 778, 584 S.E.2d 27 (2003); Roberts v. State, 280 Ga. App. 672, 634 S.E.2d 790 (2006); Eason v. Dozier, 298 Ga. App. 65, 679 S.E.2d 89 (2009).
"Person"
Unborn children not covered.
- Legislature did not intend for the term "person" as used in O.C.G.A. § 40-6-393 to encompass unborn children. Billingsley v. State, 183 Ga. App. 850, 360 S.E.2d 451 (1987).
Child who lived eleven hours after delivery was "person."
- After the defendant injured a pregnant woman whose child lived approximately 11 hours after being delivered by emergency Caesarean section, the child was a "person" at the time of the child's death and the trial court erred by granting the defendant's general demurrer to a charge of vehicular homicide. State v. Hammett, 192 Ga. App. 224, 384 S.E.2d 220 (1989).
Pleadings
Indictment for felony murder and vehicular homicide.
- Defendant could be indicted for vehicular homicide under O.C.G.A. § 40-6-393 and felony murder during the commission of fleeing and attempting to elude a police officer under O.C.G.A. § 40-6-395. State v. Tiraboschi, 269 Ga. 812, 504 S.E.2d 689 (1998).
Indictment for reckless driving sufficiently alleged first degree vehicular homicide.
- By alleging that a defendant violated the reckless driving statute, O.C.G.A. § 40-6-390, an indictment incorporated the elements of that offense that the defendant drove the vehicle in reckless disregard for the safety of persons or property, and was sufficient to assert an indictment for vehicular homicide in the first degree. State v. Biddle, 303 Ga. App. 384, 693 S.E.2d 539 (2010).
Indictment insufficient for first degree vehicular homicide conviction.
- Indictment charging defendant with first degree vehicular homicide based on reckless driving was defective and, therefore, counsel was ineffective for failing to file a general demurrer because it failed to include the language that the defendant drove with reckless disregard for the safety of persons or property, an essential element of the predicate offense. Heath v. State, 349 Ga. App. 84, 825 S.E.2d 474 (2019), aff'd, 843 S.E.2d 801, No. S19G0967, 2020 Ga. LEXIS 362 (Ga. 2020).
Indictment tracking statute with explanation held sufficient.
- When the indictment charging the defendant with homicide by vehicle tracked the language of Ga. L. 1974, p. 633, § 1 (see O.C.G.A. § 40-6-390), accusing the defendant of "driving his motor vehicle in a reckless disregard for the safety of the deceased," but also contained the additional phrase "by failing to grant the right of way to oncoming traffic," a common-sense reading of the entire indictment made it clear that the defendant was being so charged, and the defendant was properly charged. Ivie v. State, 151 Ga. App. 496, 260 S.E.2d 543 (1979).
Indictment unclear as to whether felony or misdemeanor charged.
- When the indictment merely charged vehicular homicide and did not set forth that it was of the first degree, or second degree, and in reading the allegations it was not possible to determine if the reckless manner, "failing to yield right of way," amounted to driving the vehicle "in reckless disregard for the safety of persons or property" or charged the defendant with a mere misdemeanor, that is, some other violation of Ga. L. 1974, p. 633 (see now O.C.G.A. Ch. 6, T. 40); thus, the placing of Ga. L. 1976, p. 977, § 1 (see now O.C.G.A. § 40-6-393) in the indictment was insufficient. State v. Black, 149 Ga. App. 389, 254 S.E.2d 506 (1979).
Indictment sufficient.
- An indictment that directly tracked the language of subsection (a) of O.C.G.A. § 40-6-393 was sufficient to charge the defendant with felony vehicular homicide. Duggan v. State, 225 Ga. App. 291, 483 S.E.2d 373 (1997).
Because one count of first-degree vehicular homicide of the indictment tracked the statutory language of O.C.G.A. § 40-6-393(b), with a cite to the underlying hit-and-run statute of O.C.G.A. § 40-6-270(b) and description of the circumstances surrounding the vehicular homicide incident, the indictment was sufficient to set forth the first-degree vehicular homicide offense. Mitchell v. State, 355 Ga. App. 7, 842 S.E.2d 322 (2020).
Indictment charging the defendant with homicide by vehicle in the first degree predicated on a hit-and-run offense and hit and run was improperly dismissed because the defendant could not admit the allegations in the hit-and-run count of the indictment and not be guilty of that crime because, if the defendant admitted that the defendant was involved in an accident which was the proximate cause of the victim's death and that the defendant knowingly failed to stop the defendant's vehicle at the scene of the accident or stop the defendant's vehicle as close thereto as possible and return to the scene as alleged in the indictment, the defendant would be guilty of hit and run. State v. Mondor, 306 Ga. 338, 830 S.E.2d 206 (2019).
No additional time to obtain indictment for felony vehicular homicide.
- Georgia Court of Appeals properly concluded that O.C.G.A. § 17-3-3 did not give the state six additional months to obtain a second indictment against the appellee for felony vehicular homicide (FVH) after the state's unsuccessful attempt to appeal the dismissal of the FVH count of the first indictment as the appeal did not stay any time limit and the FVH count of the second indictment did not relate back to the date of the first indictment since only a misdemeanor was pending at that point. State v. Outen, 296 Ga. 40, 764 S.E.2d 848 (2014).
Denial of defendant's motion for a directed verdict was not error when the jury was not compelled by the evidence to accept the defendant's theory that the victim was still alive and not dying after the defendant hit the victim and was instead killed by another vehicle. Hood v. State, 193 Ga. App. 701, 389 S.E.2d 264 (1989).
Evidence
Exculpatory information withheld by state.
- When the defendant pled guilty to homicide by vehicle and serious injury by vehicle, the defendant should have been allowed to withdraw the plea after the defendant discovered that the state deliberately withheld exculpatory evidence regarding the calculation of the defendant's speed and road conditions. Carroll v. State, 222 Ga. App. 560, 474 S.E.2d 737 (1996).
Testimony that defendant seen intoxicated weeks later near accident scene.
- In prosecution for vehicular homicide, predicated on reckless driving and driving under the influence, testimony by a police officer as to finding the defendant in a car, slumped over the steering wheel and obviously drunk, at a service station near the scene of the accident, a few weeks after the accident, was admissible to show the defendant's bent of mind and course of conduct. Head v. State, 246 Ga. 360, 271 S.E.2d 452 (1980).
Defendant not guilty of vehicular homicide.
- Evidence was insufficient to sustain a conviction for vehicular homicide in the second degree since given the position of the cars prior to the accident and given that the defendant's car did not impact with the defendant's deceased sister's car in the accident, there was no direct evidence sufficient to establish that the defendant's commission of a traffic offense was the proximate cause of the deceased's death. McKinney v. State, 204 Ga. App. 323, 419 S.E.2d 339 (1992).
Victim's use of marijuana as contributing factor.
- When the victim hit the defendant who was improperly backing onto the highway, the victim's two passengers were killed, and the victim's urinalysis was positive for marijuana use, that evidence indisputably went to the question of whether the victim was impaired and whether that impairment contributed to the accident and the trial court erred when the court prohibited the defendant from presenting the urinalysis evidence or cross-examining the victim about marijuana use prior to the crash. Crowe v. State, 277 Ga. 513, 591 S.E.2d 829 (2004).
Witness' testimony that "person is under the influence."
- Charge to the jury stating that "when a witness testifies that a person's under the influence of alcohol, the witness is testifying as to a fact, and is not giving an opinion" was reversible error because the jury was erroneously instructed to consider what was the ultimate personal conclusion of the witnesses as a statement of the existence of the objective fact of the defendant's intoxication. Howard v. State, 177 Ga. App. 589, 340 S.E.2d 212 (1986).
Syringes and Narcotics Anonymous booklet seized from the defendant's car had no probative value to a vehicular homicide charge and could serve only to instill in the jury's mind that the defendant was a user of hard drugs. The inflammatory nature of these items of evidence was further enhanced by the fact that the non-drug related items found in the defendant's car were not introduced into evidence. Nash v. State, 179 Ga. App. 702, 347 S.E.2d 651 (1986).
Admission of a bag of syringes purchased by the defendant being prosecuted for vehicular homicide was not necessary to establish the defendant's precollision route and should not have been admitted as evidence, though such admission was harmless error. Nash v. State, 179 Ga. App. 702, 347 S.E.2d 651 (1986).
Defendant's admission that the defendant had used cocaine the night before the collision was admissible in a prosecution for vehicular homicide. Nash v. State, 179 Ga. App. 702, 347 S.E.2d 651 (1986).
Intoxication making "less safe" driver.
- Evidence was presented from which a rational trier of fact could reasonably find the defendant was intoxicated and that defendant's intoxication caused the defendant to be a "less safe" driver which caused the collision and deaths of the defendant's three passengers. Mote v. State, 212 Ga. App. 551, 442 S.E.2d 799 (1994).
In an action in which the defendant is accused of causing the victim's death through a violation of O.C.G.A. § 40-6-391(a)(1), which makes it unlawful for a person to drive or be in actual physical control of any moving vehicle under the influence of alcohol to the extent that it is less safe for the person to drive, it is not required that the defendant be shown to have actually committed an unsafe act. Miller v. State, 236 Ga. App. 825, 513 S.E.2d 27 (1999).
Attempting suicide by collision supported malice murder count.
- Defendant, who attempted to commit suicide by driving the defendant's car head-on into another vehicle, whose occupant was killed, could be considered as having an "abandoned and malignant" heart for purposes of implying malice, despite the fact that the primary purpose of the defendant's action was to kill oneself. Anderson v. State, 254 Ga. 470, 330 S.E.2d 592 (1985).
Victim's failure to wear seat belt.
- Victim's failure to wear a seat belt can play no role in determining whether the defendant is guilty of vehicular homicide. Whitener v. State, 201 Ga. App. 309, 410 S.E.2d 796, cert. denied, 201 Ga. App. 905, 410 S.E.2d 796 (1991).
Evidence regarding victim's use of seatbelt irrelevant and inadmissible.
- Trial court properly excluded evidence of seatbelt use because evidence of the victim's failure to wear a seatbelt was irrelevant to causation and inadmissible in a criminal case as it did not tend to make it either more or less probable that an accident caused by the defendant proximately caused the victim's death, in violation of the statutes for homicide by vehicle in the first degree predicated on a hit-and-run offense and for hit and run. State v. Mondor, 306 Ga. 338, 830 S.E.2d 206 (2019).
Failure to escort oversized mobile home.
- Death of another person resulting from a driver's failure to provide a front escort to an oversized mobile home, as required by the driver's permit, fell squarely within the definition of "homicide by vehicle." Wheat v. State, 171 Ga. App. 583, 320 S.E.2d 808 (1984).
Evidence of prior speeding tickets to show recklessness.
- Evidence of two prior speeding tickets and a failure to stop ticket was admissible in the defendant's trial for first degree vehicular homicide in violation of O.C.G.A. § 40-6-393 because the defendant contested recklessness and the tickets were similar in nature to the defendant's reckless conduct and showed the defendant's bent of mind and course of conduct. Taylor v. State, 304 Ga. App. 573, 696 S.E.2d 498 (2010).
Evidence was sufficient to convict of providing alcohol to minor.
- Evidence that the defendant encouraged the minor, a 14-year old, to drink and drive when the defendant gave the minor beer and the keys to the defendant's car, knowing that the minor was about to drive, was sufficient to show that the defendant was a party to the minor's driving under the influence to the extent that it was less safe to drive and thus to support conviction for homicide by vehicle in the first degree despite the fact that the defendant was neither driving nor riding in the car that caused the deaths. Guzman v. State, 262 Ga. App. 564, 586 S.E.2d 59 (2003).
Evidence sufficient to withstand motion for directed verdict.
- Evidence was sufficient to deny a defendant's motion for a directed verdict in a prosecution for reckless vehicular homicide, reckless driving, DUI, running a red light, and failure to exercise due care when, after smoking crack and arguing with the defendant's former spouse, the defendant struck a car from behind, struck a pedestrian, and collided with a burgundy car, killing the burgundy car's two occupants; the defendant was found slumped over on the front driver's side of the pickup truck the defendant was driving. Hill v. State, 285 Ga. App. 503, 646 S.E.2d 718 (2007).
Evidence sufficient for conviction.
- See Quaile v. State, 172 Ga. App. 421, 323 S.E.2d 281 (1984); Whitener v. State, 201 Ga. App. 309, 410 S.E.2d 796, cert. denied, 201 Ga. App. 905, 410 S.E.2d 796 (1991); Tillery v. State, 225 Ga. App. 89, 483 S.E.2d 333 (1997); In re L.P., 228 Ga. App. 786, 492 S.E.2d 757 (1997); Scott v. State, 230 Ga. App. 522, 496 S.E.2d 494 (1998); Holland v. State, 240 Ga. App. 169, 523 S.E.2d 33 (1999); Hill v. State, 250 Ga. App. 9, 550 S.E.2d 422 (2001).
After the defendant admitted having consumed a six-pack of beer approximately two-and-one-half hours prior to the accident, and a forensic chemist testified that the defendant's blood alcohol level at the time of the accident would have been between .105 and .13 percent, the expert testimony was sufficient, pursuant to former subparagraph (b)(3) of O.C.G.A. § 40-6-392, to authorize the conclusion that the defendant was "under the influence of alcohol" within the contemplation of O.C.G.A. § 40-6-391(a)(1). Based on this evidence, combined with the evidence of the defendant's erratic driving, a rational trier of fact could reasonably have found the defendant guilty of vehicular homicide beyond a reasonable doubt. Collum v. State, 186 Ga. App. 822, 368 S.E.2d 578 (1988).
Evidence that the defendant drove a tractor-trailer truck at such a high rate of speed that other vehicles had to move out of the truck's path was sufficient to support the defendant's conviction for homicide by vehicle in the first degree after the defendant's truck crashed into a vehicle and caused the victim's death as the evidence showed that the defendant drove the vehicle in reckless disregard of the safety of others, and that the defendant's recklessness caused the victim's death. Wilkes v. State, 254 Ga. App. 447, 562 S.E.2d 519 (2002).
Evidence supported the defendant's conviction of homicide by vehicle in the first degree, a violation of O.C.G.A. § 40-6-393(a), in relation to the death of a pedestrian who was struck while walking along the shoulder of the road given that: (1) two witnesses saw the defendant's burgundy car with the defendant's license plate strike the victim and drive away; (2) when police traced the car to the defendant, the passenger-side, including the side mirror, was damaged; (3) a fabric imprint consistent with the victim's clothing was found on the hood of the defendant's car; and (4) the defendant's friend testified that, at around the time of the accident, the defendant drove the defendant's burgundy car away from the friend's home, which was near the accident scene. Jackson v. State, 258 Ga. App. 806, 575 S.E.2d 713 (2002), cert. denied, 540 U.S. 1006, 124 S. Ct. 536, 157 L. Ed. 2d 413 (2003).
Trial court did not err in denying the defendant's motions for directed verdict and new trial because the evidence was sufficient to sustain the defendant's convictions for vehicular homicide and DUI when several witnesses on the scene testified that the defendant was in the driver's seat of the vehicle immediately after the accident. Hunt v. State, 261 Ga. App. 417, 582 S.E.2d 493 (2003).
When evidence that the defendant's blood tested positive for marijuana use within 12 hours of a collision was properly introduced and when testimony by an accident reconstruction expert and a witness indicated that the defendant was traveling recklessly on the wrong side of the road when the defendant struck the victim's vehicle, the defendant was properly found guilty of first-degree vehicular homicide and reckless driving. Upshaw v. State, 264 Ga. App. 878, 592 S.E.2d 523 (2003).
Because, among other evidence, the state patrol's accident reconstruction specialist opined that an officer did a "sudden-snatch left," a sudden evasive maneuver, to avoid a collision between the officer's and the defendant's vehicle during a high speed chase of the defendant, and while doing so, lost control of the vehicle and collided with an oncoming car, the jury could have found that, while fleeing and eluding the officer, the defendant veered the defendant's vehicle toward and into the lane of the officer's vehicle, causing the officer to "sudden-snatch-left," lose control of the vehicle, and collide with the oncoming car; thus, the defendant's conviction of homicide by vehicle was supported by sufficient evidence. Ponder v. State, 274 Ga. App. 93, 616 S.E.2d 857 (2005).
Evidence was sufficient to support the defendant's convictions for driving under the influence, vehicular homicide, reckless driving, and other charges as the evidence showed that the defendant was caught trying to take merchandise from a store, and then struck and killed the victim as the defendant left the store parking lot and turned on to a highway at a time when the defendant admittedly was under the influence of drugs. Cromartie v. State, 275 Ga. App. 209, 620 S.E.2d 413 (2005).
Defendant was properly convicted of causing death while operating a vehicle after having been declared a habitual violator (O.C.G.A. § 40-6-393(c)) although the defendant was eligible to apply for a license under O.C.G.A. § 40-5-62(a)(1), the failure to apply for reinstatement of the license after five years elapsed meant that the revocation remained in effect. Greene v. State, 278 Ga. App. 848, 630 S.E.2d 123 (2006).
State's evidence, both direct and circumstantial, was sufficient to uphold the defendant's conviction of vehicular homicide and that the defendant violated O.C.G.A. § 40-6-391 by driving while under the influence of alcohol as the evidence established the following: testimony of eyewitnesses and of the trooper who investigated the accident established that the defendant was driving erratically and dangerously prior to the collision; the jury was entitled to consider the defendant's admitted flight from the scene as evidence of the defendant's guilt; the defendant admitted that there were two open bottles of liquor in the defendant's car prior to the fatal crash and that the defendant had an alcohol problem on that day. Merritt v. State, 288 Ga. App. 89, 653 S.E.2d 368 (2007).
There was sufficient evidence to support the defendant's conviction for vehicular homicide by driving under the influence of alcohol based on the testimony of the arresting officer that the defendant appeared intoxicated, a videotape of the defendant interacting with the officer, the testimony of an expert that indicated that the defendant took no evasive actions and struck the pedestrian in a well-lighted area, and witnesses' testimony that the defendant ran a red light. Therefore, the jury properly found that the defendant was operating the vehicle while under the influence of alcohol to the extent it was less safe for the defendant to drive. Brown v. State, 291 Ga. App. 383, 662 S.E.2d 206 (2008).
With regard to a defendant's convictions on six counts of first degree vehicular homicide and other crimes, the defendant failed to establish ineffective assistance of counsel as defense counsel presented seven witnesses who testified that the defendant was not driving the vehicle at issue. The fact that certain photographs and blood test sampling were not presented into evidence, other evidence that went to the defendant's defense was not admitted into evidence, and an accident reconstruction expert was not hired were reasonable strategic decisions. Davis v. State, 293 Ga. App. 799, 668 S.E.2d 290 (2008).
Defendant's conviction for reckless driving was appropriate because the evidence was sufficient for the jury to have found beyond a reasonable doubt that the defendant was driving the defendant's truck in a manner exhibiting a reckless disregard for the safety of others under O.C.G.A. §§ 40-6-390(a) and40-6-393(a). Although the defendant argued that there was no direct evidence of the manner of driving, and that the circumstantial evidence supported a separate hypothesis that the defendant had lost consciousness because of heat exhaustion and dehydration before the accident, the jury considered the testimony regarding that alternative theory and obviously rejected that theory. Shy v. State, 309 Ga. App. 274, 709 S.E.2d 869 (2011).
Evidence that a defendant was intoxicated at twice the legal limit and crashed the defendant's car into a tree, killing the defendant's passenger, was sufficient for the jury to find the defendant guilty of first degree vehicular homicide in violation of O.C.G.A. § 40-6-393(a), although the defendant claimed the passenger grabbed the steering wheel. Brown v. State, 310 Ga. App. 285, 712 S.E.2d 521 (2011).
Evidence was sufficient for the jury to find the defendant guilty of first degree homicide by vehicle, O.C.G.A. § 40-6-393(a), first degree feticide by vehicle, O.C.G.A. § 40-6-393.1(b)(1), driving under the influence (DUI) of alcohol, O.C.G.A. § 40-6-391(a)(5), and DUI of alcohol to the extent that it was less safe for the defendant to do so, O.C.G.A. § 40-6-391(a)(1), because the state presented evidence that the defendant had a blood-alcohol content of nearly double the legal limit at or near the time the defendant veered across three lanes of traffic and collided with a driver's pick-up truck, which resulted in the death of the driver, a passenger, and the passenger's unborn child. Jones v. State, 313 Ga. App. 590, 722 S.E.2d 202 (2012).
Sufficient evidence supported defendant's conviction for first-degree homicide by vehicle by violating O.C.G.A. § 40-6-391(a)(5) because the defendant drove into a tree while operating a vehicle containing three children as passengers, resulting in a fatality and other serious injuries, a clear plastic bottle containing 77 proof alcohol was found on the floorboard, and defendant's blood alcohol content was 0.207 grams. Crowe v. State, 314 Ga. App. 527, 724 S.E.2d 831 (2012).
Double jeopardy did not bar the defendant's retrial for misdemeanor vehicular homicide under O.C.G.A. § 40-6-393(c) as the evidence supported the conviction. The evidence established that by crossing a highway outside of a crosswalk, the defendant placed a young child in the path of a quickly approaching van, causing the child to be struck and fatally injured. Nelson v. State, 317 Ga. App. 527, 731 S.E.2d 770 (2012).
Jury found defendant guilty of not only vehicular homicide but also reckless driving (not speeding) and less-safe driving under the influence (DUI). Accordingly, the jury's verdict of first-degree vehicular homicide was proper. Otuwa v. State, 319 Ga. App. 339, 734 S.E.2d 273 (2012).
Evidence that the defendant borrowed her sister's car, struck the rear of a slower moving car leading to the deaths of the driver and passenger, the defendant identified herself as her sister, and the defendant signed her sister's name on the Miranda form and on her written statement supported the defendant's convictions for first degree homicide by vehicle, forgery, reckless driving, and giving a false name. Smith v. State, 319 Ga. App. 164, 735 S.E.2d 153 (2012).
Evidence was sufficient for a a conviction of vehicular homicide, O.C.G.A. § 40-6-393(a), based on the defendant's driving while impaired by alcohol and taking a fast turn in a door-less Jeep, causing the defendant's passenger to be thrown onto the highway where the passenger was struck by another vehicle; the jury could conclude that the defendant's conduct played a substantial part in bringing about the passenger's death. A few hours after the accident the defendant's blood-alcohol content was .19 grams, more than twice the legal limit. Hartzler v. State, 332 Ga. App. 674, 774 S.E.2d 738 (2015).
Evidence was sufficient to support convictions for homicide by vehicle and serious injury by vehicle as the jury was entitled to find the defense expert's testimony conflicted with and was less credible than the account of the eyewitness driving in front of the defendant's car at the time of the collision, who testified that the defendant's car veered left and into another car, and the evidence showed that the defendant fled and had the damage to the defendant's car repaired. Michael v. State, 335 Ga. App. 579, 782 S.E.2d 479 (2016).
Undisputed evidence that the collision occurred outside the defendant's lane of travel was sufficient for the jury to find that the defendant failed to maintain the defendant's lane of travel and was, therefore, guilty of second degree vehicular homicide. Evans-Glodowski v. State, 335 Ga. App. 484, 781 S.E.2d 591 (2016).
Appellant's conviction for vehicular homicide was affirmed because the verdict led to the strong inference that the appellant, while driving under the influence, killed the victim with a vehicle appellant was driving at a high rate of speed and there was no other evidence that another car or anything else struck the victim while alive with such force as to kill. Taylor v. State, 337 Ga. App. 486, 788 S.E.2d 97 (2016).
Evidence was sufficient to convict the defendant of first degree homicide by vehicle while fleeing and attempting to elude a pursuing police vehicle because the officer began following a car as the officer suspected that the driver was impaired; the officer activated the vehicle's lights to stop the car to investigate whether the driver was impaired, but the defendant did not pull over and stop; after the officer blew the air horn to give the defendant an audible stop signal, the car accelerated; seconds later, the car failed to negotiate a sharp curve and crashed into a utility pole; on arrival at the hospital emergency room, the passenger was declared dead; and the passenger died as a result of injuries suffered in the crash. Moceri v. State, 338 Ga. App. 329, 788 S.E.2d 899 (2016), cert. denied, No. S17C0095, 2017 Ga. LEXIS 210 (Ga. 2017).
Sufficient evidence supported appellant's convictions for vehicular homicide and serious bodily injury based on the state presenting testimony of an expert in pharmacology and toxicology that the drugs in the appellant's system would have made the appellant a hazardous driver and that the appellant was severely impaired, along with evidence that the vehicle the appellant was driving crossed the center line and killed two people. Dickson v. State, 339 Ga. App. 500, 793 S.E.2d 663 (2016).
Evidence of the defendant's animosity and threats toward the victim's girlfriend, eyewitness testimony about the defendant's manner of driving, and the defendant's statements to police that the defendant was driving in a "fit of fury" and "like a bat out of hell," was sufficient for the jury to find the defendant guilty of first degree vehicular homicide. Turner v. State, 342 Ga. App. 882, 805 S.E.2d 624 (2017).
Evidence sufficient to sustain conviction of vehicular homicide in the second degree.
- See Watts v. State, 186 Ga. App. 358, 366 S.E.2d 849 (1988); McKinney v. State, 213 Ga. App. 498, 445 S.E.2d 550 (1994).
Evidence that the defendant was driving some people home in a truck from a bar, that the decedent fell off the truck bed, that the decedent was lying unconscious on the pavement, that the defendant and other people in the truck put the decedent in the truck, that the defendant and the others did not take the decedent to a hospital when the decedent regained consciousness in the truck as the decedent did not want to go to a hospital, and that the defendant did not report the accident was sufficient to support the defendant's conviction for second degree vehicular homicide when it was coupled with a doctor's testimony that the decedent, who died from brain injuries a week later, would have had a better prognosis if treated earlier. Steele v. State, 275 Ga. App. 651, 621 S.E.2d 606 (2005).
When the defendant, who was under the influence of methamphetamine, drove on the wrong side of the road and injured a motorist, and another motorist went to the first motorist's assistance and was killed by an oncoming vehicle, it was not improper for a jury to reject a claim that the defendant did not proximately cause the victim's death and return a guilty verdict of vehicular manslaughter, under O.C.G.A. § 40-6-393, because there was evidence that the defendant's negligence substantially contributed to the victim's death. McGrath v. State, 277 Ga. App. 825, 627 S.E.2d 866 (2006), cert. denied, 549 U.S. 1223, 127 S. Ct. 1287 (2007).
Evidence was sufficient to support the defendant's conviction for vehicular homicide because although there was some evidence that the collision between the motorcycle and a pedestrian occurred in the roadway, other evidence indicated that the victim had crossed the road and reached the apparent safety of a tree before the defendant lost control of the motorcycle. Greene v. State, 278 Ga. App. 848, 630 S.E.2d 123 (2006).
Expert testimony that the defendant's speed at the time of braking was between 54 and 66 miles per hour, exceeding the 35 mile per hour speed limit, and testimony from other drivers on the road that the defendant passed the other drivers at an excessive rate of speed was sufficient for the jury to infer beyond a reasonable doubt that the defendant was driving in a manner exhibiting a reckless disregard for the safety of others. Evans-Glodowski v. State, 335 Ga. App. 484, 781 S.E.2d 591 (2016).
Jury Instructions
Charging on lesser included offense.
- In the absence of a timely written request, the trial judge in a trial for homicide by vehicle did not err in failing to charge on the lesser included offense of homicide by vehicle in the second degree. Ivie v. State, 151 Ga. App. 496, 260 S.E.2d 543 (1979).
In a prosecution for vehicular homicide in the first degree, even though there was sufficient evidence to convict the defendant of causing the death of the victim with malice aforethought through reckless driving and driving under the influence, there was also evidence that the defendant committed separate less culpable offenses of speeding and failing to obey a traffic signal and, thus, the defendant was entitled to a charge on the lesser included offense of second degree vehicular homicide. Lefler v. State, 210 Ga. App. 609, 436 S.E.2d 777 (1993).
Because there was some evidence, even from the state's witnesses, that showed that the defendant committed an act of following too closely, a traffic violation other than the more culpable offense of DUI, that may have caused the collision and resulting death, the trial court erred in failing to give the defendant's written request for an instruction on second-degree vehicular homicide. Brown v. State, 287 Ga. App. 755, 652 S.E.2d 631 (2007).
Trial court did not err in not giving the defendant's requested charge on homicide by vehicle in the second degree based on failure to maintain a lane as the request was made orally, not in writing, and the evidence, which included the defendant's admission to driving in a "fit of fury" and despite being blinded by mace, did not support such a charge. Turner v. State, 342 Ga. App. 882, 805 S.E.2d 624 (2017).
Refusal to grant the defendant's requested charge on vehicular homicide in the second degree by following too closely as a lesser included offense of vehicular homicide in the first degree by driving under the influence was reversible error since there was evidence of following too closely and the evidence did not demand a finding that the driving under the influence was the sole proximate cause of the victim's death. Hayles v. State, 180 Ga. App. 860, 350 S.E.2d 793 (1986).
Defendant's convictions on two counts of homicide by vehicle in the first degree were reversed because the trial court erred in failing to give the requested instruction on the lesser included offense of the vehicular homicide charge since there was evidence of other traffic offenses that the jury could have found to have been the cause of the accident. O'Shields v. State, 351 Ga. App. 800, 833 S.E.2d 290 (2019).
When the defendant was accused of beating the victim with a pistol and running over the victim with a car, the trial court did not err in refusing to charge on the lesser included offenses of vehicular homicide and reckless conduct. The defendant's theory was that other individuals committed the crime and that the defendant accidentally ran over the victim; thus, the evidence showed either the commission of the offenses as charged or the commission of no offense. Lupoe v. State, 284 Ga. 576, 669 S.E.2d 133 (2008).
Instruction on malice aforethought.
- In a trial when the defendant was tried for, inter alia, homicide by vehicle in the first degree, a violation of O.C.G.A. § 40-6-393(a), the trial court did not err by instructing the jury on the meaning of the term "malice aforethought," as the explicit statutory definition of that crime contained the term "malice aforethought." Jackson v. State, 258 Ga. App. 806, 575 S.E.2d 713 (2002), cert. denied, 540 U.S. 1006, 124 S. Ct. 536, 157 L. Ed. 2d 413 (2003).
Instruction on proximate cause.
- Trial court is not required to give an instruction on proximate cause in a prosecution for vehicular homicide when the defendant does not request the charge, and when the trial court specifically charges the jury that causation is a material element of the offense. Billingsley v. State, 183 Ga. App. 850, 360 S.E.2d 451 (1987).
Instruction on accident.
- Appellate court erred in reversing defendant's conviction for vehicular homicide based on her failure to stop for a pedestrian in a crosswalk because those charges were strict liability offenses to which the accident defense did not apply since it was undisputed she voluntarily drove into the crosswalk and struck the child. State v. Ogilvie, 292 Ga. 6, 734 S.E.2d 50 (2012).
Instruction on "carelessness" rather than "recklessness" not misleading.
- In charge on vehicular homicide, the trial court did not equate "reckless" with "carelessness"; even assuming that use of the term "carelessness" in one portion of the jury charge made the charge less clear than desired, after reviewing the charge as a whole, the court was satisfied that the jury had not been misled or confused. Gathuru v. State, 291 Ga. App. 178, 661 S.E.2d 233 (2008).
In a vehicular homicide case, the trial court did not err in not responding to a jury question with regard to the definitions of "reckless" and "carelessness" by defining the terms; initial charge, which mentioned "carelessness" only once and consistently stated that vehicular homicide had to be based on a willful, wanton, or reckless disregard for others' safety, did not allow the jury to lower the standard of proof, and more charges might have confused the jury. Gathuru v. State, 291 Ga. App. 178, 661 S.E.2d 233 (2008).
Instruction on criminal negligence proper.
- Trial court properly charged the jury on criminal negligence at the defendant's trial for homicide by vehicle in the second degree; such a charge is applicable to vehicular homicide, regardless of the grade of the offense. Conyers v. State, 260 Ga. 506, 397 S.E.2d 423 (1990).
Instruction on criminal negligence not warranted.
- Defendant accused of second-degree vehicular homicide was not entitled to a requested charge on criminal negligence since the state's case established that the defendant intended to violate the rules of the road by changing lanes, and the theory of criminal negligence was not supported by the facts or the evidence. Asberry v. State, 193 Ga. App. 711, 389 S.E.2d 18 (1989).
Instruction on circumstantial evidence.
- Because the testimony from the medical examiner amounted to direct, and not circumstantial, evidence that: (1) the accident the defendant was charged with causing caused the decedent's death; (2) either the defendant's or the other impact caused the blunt force trauma to the decedent's head; and (3) any of the impacts, alone, could have caused the trauma, the defendant's requested circumstantial evidence charge was properly denied by the trial court. Kirk v. State, 289 Ga. App. 125, 656 S.E.2d 251 (2008).
Disclosure by jury of verdict's premise.
- There was no error in the court's failure to instruct the jury to disclose whether the jury's guilty verdicts (of vehicular homicide) were premised upon the defendant's violation of O.C.G.A. § 40-6-390 or O.C.G.A. § 40-6-391, or both, since there was evidence to warrant the jury's finding of a violation of either section, or both. Deshazier v. State, 155 Ga. App. 526, 271 S.E.2d 664 (1980).
Instructions confusing to jury as to first- and second-degree vehicular homicide.
- Trial court's instruction to the jury was correct, under O.C.G.A. § 40-6-393(b), as to vehicular homicide in the first degree, but was misleading as to vehicular homicide in the second degree because the instruction could have misled the jury into believing that the jury could convict the defendant of second degree vehicular homicide without finding that the defendant's violation of O.C.G.A. § 40-6-273, by failing to report an accident in which the decedent was injured when the decedent fell off a truck that the defendant was driving, caused the decedent's later death from brain injuries. Steele v. State, 275 Ga. App. 651, 621 S.E.2d 606 (2005).
Instruction as to degrees of crime.
- Trial court's instruction on vehicular homicide was not improper; the instruction did not bar a verdict for second-degree vehicular homicide, but correctly implied that if the jury concluded that the defendant was guilty of either DUI or reckless driving, and if the jury also found the defendant guilty of vehicular homicide, it followed that the defendant must be guilty of first-degree, and not second-degree, vehicular homicide. Hill v. State, 285 Ga. App. 503, 646 S.E.2d 718 (2007).
Contingent jury charges on first- and second-degree vehicular homicide upheld.
- Trial court did not err in charging the jury on vehicular homicide, specifically explaining that if the jury found the defendant guilty of either DUI or reckless driving, and if the jury also found the defendant guilty of vehicular homicide, it followed that the defendant had to be guilty of first-degree, and not second-degree, vehicular homicide. Hill v. State, 285 Ga. App. 503, 646 S.E.2d 718 (2007).
Sentencing
Sentencing defendant on lesser offenses when also sentenced on greater offense.
- Trial court erred in sentencing the defendant on the lesser offenses of reckless driving and driving under the influence while the trial court also sentenced the defendant on the greater offense of homicide by vehicle in the first degree, which included the lesser offenses. Had the jury revealed which of the lesser offenses served as the foundation for the homicide verdict a sentence on the remaining lesser offense might have been appropriate, but as such information did not appear in the record the defendant may not be sentenced for either of the lesser included offenses of violation of O.C.G.A. §§ 40-6-390 and40-6-391. McNabb v. State, 180 Ga. App. 723, 350 S.E.2d 314 (1986).
When speeding was a direct and proximate cause of the vehicular homicide, it merged into the vehicular homicide conviction, and a separate sentence for the speeding offense was void. Gilpatrick v. State, 226 Ga. App. 692, 487 S.E.2d 461 (1997).
Trial court improperly treated a jury's finding of guilt on an involuntary manslaughter count as a finding of guilt on an additional homicide by vehicle count because the jury had expressly acquitted the defendant of homicide by vehicle. That conviction was properly vacated, and resentencing was required on a conviction for serious injury by vehicle. Taylor v. State, 286 Ga. 328, 687 S.E.2d 409 (2009).
Merger required remand for resentencing.
- Because the defendant's misdemeanor sentence, based on the failure to exercise due care, was also based in part on convictions that merged with the reckless vehicular homicide counts, and because the trial court never vacated the defendant's convictions for the misdemeanor counts charged, the relevant portions of the defendant's sentence were vacated and the case was remanded for resentencing. Hill v. State, 285 Ga. App. 503, 646 S.E.2d 718 (2007).
Fifteen year sentence for each homicide count.
- Upon conviction of the defendant of three counts of homicide by vehicle through a violation of O.C.G.A. § 40-6-391, driving under the influence, it was not a violation of double jeopardy to sentence the defendant to 15 years for each of the homicide counts. Cox v. State, 243 Ga. App. 668, 533 S.E.2d 435 (2000).
Sentencing for felony conviction appropriate.
- Defendant was properly sentenced for felony vehicular homicide instead of misdemeanor vehicular homicide as the evidence that the defendant was speeding and weaving through traffic, causing the accident, was sufficient to support the felony conviction. Bell v. State, 293 Ga. 683, 748 S.E.2d 382 (2013).
No merger of convictions.
- Five convictions for serious injury by vehicle and a conviction for vehicular homicide did not merge; although the convictions stemmed from one incident of driving under the influence, there were separate victims for each offense. Harris v. State, 272 Ga. App. 366, 612 S.E.2d 557 (2005).
Trial court's failure to merge the defendant's convictions for driving recklessly and committing second degree vehicular homicide in violation of O.C.G.A. §§ 40-6-390 and40-6-393, respectively, was not error for sentencing purposes as the reckless driving offense was not the underlying offense of the homicide, but rather, improper lane change was in violation of O.C.G.A. § 40-6-123(a); further, pursuant to O.C.G.A. § 16-1-6, there was no factual merger because the crimes were committed sequentially and separately. Cutter v. State, 275 Ga. App. 888, 622 S.E.2d 96 (2005).
Merger of convictions.
- Convictions for driving under the influence of alcohol and reckless driving merged into a vehicular homicide conviction and were vacated. Harris v. State, 272 Ga. App. 366, 612 S.E.2d 557 (2005).
When the defendant collided with a car, killing two of the car's occupants, two counts of DUI vehicular homicide were properly merged into two counts of reckless vehicular homicide; the defendant could be convicted only once for the death of each victim. Hill v. State, 285 Ga. App. 503, 646 S.E.2d 718 (2007).
Defendant's reckless driving, red light, and less safe driving under the influence convictions merged into the defendant's reckless vehicular homicide convictions, which involved two deaths resulting from the defendant's striking a car; however, the failure to exercise due care conviction involving the defendant's striking a pedestrian did not merge into the vehicular homicide conviction as the acts leading to the two charges involved different facts and different victims. Hill v. State, 285 Ga. App. 503, 646 S.E.2d 718 (2007).
OPINIONS OF THE ATTORNEY GENERAL
Time of applicability.
- Provisions of O.C.G.A. § 40-6-393 which merely provide new trial procedures may be applied to all cases tried on or after September 1, 1983, regardless of when the violations occurred. All other provisions can be applied only to defendants whose alleged illegal conduct occurred on or after September 1, 1983. 1983 Op. Att'y Gen. No. U83-52.
RESEARCH REFERENCES
Am. Jur. 2d.
- 7A Am. Jur. 2d, Automobiles and Highway Traffic, §§ 371 et seq., 381 et seq.
Vehicular Homicide, 13 Am. Jur Trials 295.
C.J.S.- 61A C.J.S., Motor Vehicles, § 1660 et seq.
ALR.
- Liability for injury to pedestrian struck by automobile while walking along street or highway, 67 A.L.R. 96; 93 A.L.R. 551.
Homicide by automobile as murder, 21 A.L.R.3d 116.
Admissibility in criminal case of blood-alcohol test where blood was taken despite defendant's objections or refusal to submit to test, 14 A.L.R.4th 690.
Motorist's liability for striking person lying in road, 41 A.L.R.4th 303.
Corporation's criminal liability for homicide, 45 A.L.R.4th 1021.
Alcohol-related vehicular homicide: nature and elements of offense, 64 A.L.R.4th 166.
Establishment of negligence within meaning of statute penalizing negligent homicide by operation of motor vehicle - speeding or driving at unsafe speed, 84 A.L.R.6th 427.