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Walden v. State5/20/2005
show a disregard of consequences or a heedless indifference for the safety and rights of others who might reasonably be expected to be injured thereby. Keye v. State, 136 Ga. App. 707, 708 (222 SE2d 172) (1975); Johnson, 170 Ga. App. at 435; Cain v. State, 55 Ga. App. 376, 380-383 (190 SE 371) (1937). " he violation of the safety statute regulating the use of highways does not constitute criminal negligence, unless such violation is intentional, wilful, or wanton, or unless the violation, though unintentional, is accompanied by recklessness or is under circumstances from which probable death or injury to others might be reasonably anticipated." Johnson, 170 Ga. App. at 436.
Applying these principles, which were charged to the jury by the trial court, we conclude the evidence was sufficient for the jury to find beyond a reasonable doubt that Walden acted with the requisite criminal negligence when she recklessly drove the truck after taking prescription drugs. Walden admitted after the accident that she had taken numerous prescription drugs and that she knew she was too sleepy to safely drive. Evidence showed that the drugs were labeled with warnings that they could cause drowsiness. Nevertheless, Walden continued to drive after twice swerving across the center line before she completely lost control of the truck and hit and fatally injured the pedestrian. The State also produced expert evidence that the level and type of drugs found in Walden's blood rendered it unsafe for her to drive. Accordingly, the evidence was sufficient to prove beyond a reasonable doubt all the elements of first degree vehicular homicide based on the predicate violation of reckless driving. OCGA §§ 40-6-393 (a); 40-6-390 (a).
2. Walden contends that the State could not use evidence that Walden's driving was impaired by drug use to prove reckless driving in violation OCGA § 40-6-390 (a), because a charge of driving under the influence of drugs in violation of OCGA § 40-6-391 was the sole basis for prosecution. A similar contention was rejected in Hill, 207 Ga. App. 65, where the accused was found guilty of first degree vehicular homicide based on the predicate violation of reckless driving, but was acquitted of first degree vehicular homicide based on the predicate violation of driving under the influence of drugs. We found that, despite the acquittal involving the predicate DUI violation, "where an accused is charged with reckless driving, test results showing his use of drugs are admissible because the reckless driving violation could have been precipitated by the drug usage." Id. at 66. There is no merit to this contention.
Judgment affirmed. Phipps and Mikell, JJ., concur.
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