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Moore v. State11/7/2002
refusing to allow him to show that, because the truck had broken down earlier in the day and had not been taken to a mechanic, its driver was violating federal motor carrier safety regulations by operating it on the interstate at the time of the collision. The court ruled that mechanical difficulties experienced by the truck prior to the collision were too remote to be relevant.
Parker v. R & L Carriers presented a somewhat similar situation. There, we held that although a truck driver's fatigue may have explained his negligence in causing a collision by running a red light, his violation of federal motor carrier safety regulation by driving while fatigued was not the proximate cause of collision, so that trial court did not err in refusing to charge the jury that the driver committed negligence per se by violating the federal regulation. Here, the trial court similarly reasoned that any violation of the federal regulation was not the proximate cause of the collision. We agree. Moreover, in Miller v. State, we recognized that contributory negligence, as such, is not a defense in a vehicular homicide case. Therefore, on grounds of both irrelevance and immateriality, the court did not err in refusing to allow Moore to present evidence of the trucker's violation of federal regulations.
4. Moore contends that because he was indicted on a per se DUI charge, the court erred in allowing the State to introduce evidence that a person with his blood alcohol concentration would be a less safe driver.
He argues that the admission of this evidence lowered the State's burden of proof. There is no merit in this argument, as the court properly charged the jury on the State's burden of proof as to driving under the influence of alcohol with an unlawful blood alcohol concentration. Moreover, the vehicular homicide statute requires the State to establish a proximate causal connection between the defendant's DUI violation and the victim's death, regardless of the manner of commission of the underlying DUI. Therefore, we cannot say that the court abused its discretion in determining that this evidence was relevant. "The admission of evidence is a matter which rests largely within the sound discretion of the trial judge. However, the Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value, and evidence is relevant if it renders the desired inference more probable than it would be without the evidence."
5. Moore contends that the State failed to prove that he had a blood alcohol concentration at or above 0.10 grams within three hours of operating a motor vehicle.
The DUI statute in effect at the time of the collision provided that " person shall not drive or be in actual physical control of any moving vehicle while . . . [the person's alcohol concentration is 0.10 grams or more at any time within three hours after such driving or being in actual physical control from alcohol consumed before such driving or being in actual physical control ended . . . ."
The evidence showed that the collision occurred between 1:30 and 2:00 a.m. The parties stipulated that Moore's blood was drawn at 4:35 a.m. Thus, although the DUI statute does not require the driver's blood to be tested within three hours of his driving, in this case it most likely was. When Moore's blood was tested, its alcohol concentration was 0.11 grams percent. A toxicologist testified that after a person stops consuming alcohol, his body continues to absorb the alcohol for about 30 minutes and then begins to eliminate the alcohol at a fairly constant rate of .015 grams percent per hour. This evidence was sufficient to authorize the jury to find that, ev
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