Thornberry v. State , 146 Ga. App. 827 ( 1978 )

Banke, Judge.

The appellant was convicted of two counts of homicide by vehicle and sentenced to serve two consecutive one-year sentences. In this appeal, he attacks the state’s use of a blood-alcohol test as evidence against him.

The evidence disclosed that, while being pursued by a state patrol car at speeds in excess of 100 mph, the appellant drove his automobile into another vehicle which was attempting to cross the highway, killing two of its occupants and rendering him unconscious. He was taken to a hospital, where a state patrolman ordered that a sample of his blood be extracted for a blood-alcohol test because the odor of alcohol had been detected in his car and on his breath. The result showed that his blood contained .08 percent alcohol.

1. The appellant moved to suppress the result of the blood test on the grounds that he had not been advised of his right pursuant to Code § 68A-902.1 (a) (3) (4) to have additional tests made by a qualified person of his own choosing. See Hulsey v. State, 138 Ga. App. 221 (225 SE2d 752) (1976); Torley v. State, 141 Ga. App. 366 (1) (233 SE2d 476) (1977). However, it was clearly shown that the appellant was unconscious during the period when any such advice would have been of any benefit to him. Therefore, the result of the blood test was admissible under Code Ann. § 68A-902.1 (a) (3), which provides in pertinent part: "The justifiable failure or inability to obtain an additional test by a person shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer.” See Smith v. State, 143 Ga. App. 347 (1) (238 SE2d 698) (1977). It was not error to overrule the motion to suppress.

The appellant also argues for the first time on appeal that the extraction of his blood violated his constitutional rights and that it was illegal on certain other grounds as well. However, since these arguments were not raised in the court below, they will not now be considered on appeal. See Brown v. State, 115 Ga. App. 813 (1) (b) (156 SE2d 180) (1967); Pace v. State, 138 Ga. App. 839 (2) (227 SE2d 436) (1976).

2. It was not error to admit a lab technician’s testimony concerning his chemical analysis of the appellant’s blood over the objection that he was not properly shown to have been certified by the state crime laboratory to perform such chemical analyses, as required by Code § 68A-902.1 (a) (1). The witness stated that he was in fact so certified and produced what he said was a permit card issued to him by the State Crime Laboratory. In addition, he was shown to have a master’s degree in medical technology and to be the manager of lab services at the hospital where the test was performed.

The defense objected to the witness’ testimony on the ground that the highest and best evidence of his certification would not be his permit card or his statement that he was certified, but some type of original document from the state crime laboratory containing his certification. It was not error to admit the testimony. See Helmly v. State, 142 Ga. App. 577 (236 SE2d 540) (1977). The appellant’s contention that the state failed to show that the chemical analysis was done in a proper manner is waived by his failure to raise the objection at trial. See Helmly, supra, at 577.

Submitted January 3, 1978 Decided June 19, 1978 Rehearing denied July 28, 1978 Robert Edward Surles, for appellant. William M. Campbell, District Attorney, Richard Hendrix, Assistant District Attorney, for appellee.

3. The appellant also objected to the introduction of testimony concerning the blood test results on the ground that the chain of custody for the blood sample had not been properly established. It was not error to overrule the objection. The state’s evidence showed that a doctor in the hospital emergency room took the sample from the appellant in the presence of the investigating officer, that it was labeled, sealed, and placed inside a "lock box” in the officer’s presence, and that the sample was removed from the box by the lab technician who analyzed it. This was sufficient to establish with "reasonable certainty” that there had been no tampering with or alteration of the evidence. See Johnson v. State, 143 Ga. App. 169 (1) (237 SE2d 681) (1977). See also Pittman v. State, 110 Ga. App. 625 (1) (139 SE2d 507) (1964); Meadows v. State, 135 Ga. App. 758 (219 SE2d 174) (1975); Campbell v. State, 136 Ga. App. 338 (3) (221 SE2d 212) (1975).

4. Because the result of the blood test was properly admitted, it was not error to charge that it could be considered as evidence, nor was it error to overrule the motion for new trial as amended.

Judgment affirmed.

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