Summary
In Patterson v. State, 224 Ga. 197 (2) (160 S.E.2d 815) (1968), we considered this question and determined that where, as here, the blood sample is handled in a normal course of testing and nothing in the record raises a suspicion that the blood tested was other than that taken from the defendant, the evidence of tests on such blood is admissible. There was testimony in the present case that the vial's seal was intact on arrival in Atlanta and that there were no visible signs that it had been altered or the blood inside adulterated.
Summary of this case from Rucker v. StateOpinion
24514.
SUBMITTED MARCH 11, 1968.
DECIDED APRIL 4, 1968.
Murder. Catoosa Superior Court. Before Judge Coker.
J. Donald Bennett, for appellant.
Earl Self, Solicitor General, John Wiggins, Arthur K. Bolton, Attorney General, Marion O. Gordon, Assistant Attorney General, William R. Childers, Deputy Assistant Attorney General, for appellee.
This is an appeal from a conviction of murder with a recommendation of mercy. The defendant drove his automobile into the deceased, an 11-year old girl, who was standing at a mail box located in front of her home five feet off the paved portion of the road. The defendant enumerates as error the admission of the following evidence over his objections: 1. Testimony of a State expert witness that "anything from 1.0 to 1.5 milligrams [of alcohol in the defendant's blood] is considered under the influence but not definitely intoxicated" where the jury was not instructed that the presumptions arising from a blood alcohol test are to be governed by the provisions of Code Ann. § 68-1625 which provides that such alcohol content shall not create any presumptions either way; 2. The result of a blood alcohol test administered by someone other than an official designated for that purpose under Code Ann. § 68-1625; 3. The result of a blood test without a definite showing that the blood sample tested was the blood taken from the defendant; and 4. Three beer cans and a whiskey bottle which defendant contends had not been properly identified or connected with the case.
The evidence shows that the medical technologist at the Hutcheson Memorial Tri-County Hospital, Fort Oglethorpe, Georgia, at the written request of the defendant took his blood sample on Friday, June 9, 1967, the day of the alleged offense. She placed the sample in four tubes, personally labeled them and put them in a refrigerator in the laboratory. The following Monday, June 12, 1967, the chief technologist ran a modified nickelot test from these tubes while the medical technologist was present and he determined that the alcohol content of the blood sample was 1.8 milligrams or .18 per cent. The evidence shows that from Friday until Monday approximately eight persons employed in the laboratory had access to the refrigerator. The chief technologist had not been designated as a person authorized to administer blood alcohol tests under Code Ann. § 68-1625. Nine witnesses, including two State troopers, two deputy sheriffs, and the coroner, testified, without objection, that the defendant was highly intoxicated. Five of these witnesses repeated the same testimony on cross examination. The deputy sheriff testified that upon examining the defendant's automobile he saw two cans of beer on the back floorboard, a can of beer sitting on the front seat, and an empty pint whiskey bottle on the front floorboard. He had them taken from the automobile and photographed. They were then placed in the sheriff's office under "lock and key" until they were brought to the courtroom for the trial and were identified as the items taken from the defendant's automobile. Held:
1. The statutory presumptions under Ga. L. 1953, Nov. Sess., pp. 556, 575 ( Code Ann. § 68-1625 (b)) arise only if the blood test is performed at the request of the defendant in the county of his confinement by a designated specialist as prescribed by the statute. Pittman v. State, 110 Ga. App. 625 (2) ( 139 S.E.2d 507). However, there is nothing which prohibits the introduction of expert testimony concerning the result of a blood alcohol test administered by a qualified person although he might not be designated to perform such tests under the Act. Section (b) 5 of this Act provides: "The foregoing provisions of this subdivision shall not be construed as limiting the introduction of any other competent evidence bearing upon the question whether or not the defendant was under the influence of intoxicating liquor." Furthermore, nine witnesses testified, without objection, that the defendant was highly intoxicated. Seymour v. State, 210 Ga. 21 (2) ( 77 S.E.2d 519); Davis v. State, 211 Ga. 76 (2) ( 84 S.E.2d 46); Pierce v. State, 212 Ga. 88 (1) ( 90 S.E.2d 417); and Toler v. State, 213 Ga. 12 (6) ( 96 S.E.2d 593).
Accordingly, there is no merit in Enumerations of error 1 and 2.
2. The evidence shows that the blood sample was handled in the normal course of testing and there is nothing in the record that creates a suspicion that the blood tested was other than that taken from the defendant. The identify of such blood samples need not be proved beyond all possibility of doubt or that all possibility of tampering with them be excluded. The circumstances need only establish reasonable assurance of the identity of the sample. Interstate Life c. Ins. Co. v. Whitlock, 112 Ga. App. 212, 224 (3) ( 144 S.E.2d 532).
3. The beer cans and whiskey bottle were sufficiently identified to authorize their admission in evidence. Wooten v. State, 224 Ga. 106 (6).
Judgment affirmed. All the Justices concur.