After a bench trial on a multi-count indictment arising from a single-car automobile accident, Christina Renee Crowe was found guilty and sentenced for the following offenses: homicide by vehicle in the first degree in violation of OCGA § 40-6-393 a count 1; homicide by vehicle in the second degree in violation of OCGA § 40-6-393 c count 5; serious injury by vehicle in violation of OCGA § 40-6-394 count 3; driving under the influence of alcohol with an alcohol concentration of 0.08 grams or more in violation of OCGA § 40-6-391 a 5 count 6; driving under the influence of alcohol to the extent that it was less safe to drive in violation of OCGA § 40-6-391 a 1 count 7; six counts of endangering a child under the age of 14 years in violation of OCGA § 40-6-391 l counts 8, 9, 10, 11, 12, and 13; failure to maintain lane in violation of OCGA § 40-6-48 1 count 14; driving on the wrong side of the roadway in violation of OCGA § 40-6-40 count 15; and possession of an open alcoholic beverage container in the passenger area of a motor vehicle, while operating the vehicle, in violation of OCGA § 40-6-253 count 16. On appeal, Crowe contends that the trial court erred by denying her pre-trial motion to suppress evidence of test results showing her blood-alcohol level after the accident; that trial counsel was ineffective; that the court erred by denying her post-conviction motion for independent blood sample testing; that the court should have merged certain counts; and that the court imposed an illegal sentence on count 16. For the following reasons, we affirm in part; vacate in part; and remand with directions to merge various counts and re-sentence.
At the bench trial, the State and Crowe stipulated to the following evidence: On November 7, 2008, Crowe was driving her automobile southbound on highway 162 in Newton County with three passengers in the back seat: her two-month-old child Sydnie Crowe, and two children of a friend, seven-year-old Bobby Couch and four-year-old James Couch. At approximately 12:40 p.m., Crow’s automobile veered off the roadway onto the west shoulder of the road with the right side tires; then veered back onto the roadway and traveled across the southbound and northbound lanes; then left the roadway onto the east shoulder, rotated clockwise, and crashed into a tree at the rear side passenger door. As a result of the crash, Bobby Couch suffered blunt force head trauma which caused his death, and Sydnie Crowe suffered severe traumatic brain injury and skull fractures. James Couch was not severely injured. From the scene of the accident, Christina Crowe was flown by medical helicopter to Atlanta Medical Center. The helicopter flight crew told an investigating Georgia State Trooper, Jeremiah Slayton, that they smelled alcohol about Crow’s person, and a witness, Joseph Walden, told Trooper Slayton that he smelled alcohol about Crow’s person prior to her leaving a house with the children at approximately 12:30 p.m. Another Trooper, Fred Moon, traveled to Atlanta Medical Center to evaluate Christina Crowe; arrived at about 4:17 p.m. and detected that Crowe had the odor of alcohol about her person and had glassy eyes and slurred, slow speech. After the implied consent notice for suspects over 21 was read to Crowe and a blood test requested, Crowe agreed to submit to testing, and a blood sample was taken from Crowe at 5:30 p.m. An analysis of the blood sample performed by a forensic toxicologist showed that Crowe’s blood contained 0.207 grams of alcohol per 100 milliliters. A search of Crowe’s automobile after the accident revealed a clear plastic bottle containing 77 proof alcohol in the driver’s floorboard. In her defense, Crowe presented additional evidence: Crowe’s husband testified that he saw her between 11:15 a.m. and 11:30 a.m on the day of the accident and that she did not smell of alcohol and he did not notice any sign that she was intoxicated. Two of Crowe’s relatives testified that they arrived at Atlanta Medical Center between 5:00 p.m. and 5:30 p.m. on the day of the accident; that they visited with Crowe until about 8:00 p.m.; and that they did not notice any smell of alcohol on her person nor any sign that she was intoxicated. A Newton County fireman testified that he stopped at the scene of the accident before Crowe was removed from the automobile; checked her vital signs; and did not smell alcohol or see signs of intoxication.
