Donald Costley drove the vehicle he was operating into the rear of another vehicle with such force that the driver of the other vehicle was killed in the resulting crash. In August of 2001, Costley was found guilty by a jury on two counts of first degree homicide by vehicle alleging alternative violations of OCGA § 40-6-393 a. Count one alleged that he caused the death by operating the vehicle in violation of OCGA § 40-6-391 a 6 while under the influence of methamphetamine and amphetamine, and count two alleged that he caused the death by operating the vehicle in violation of OCGA § 40-6-390 in reckless disregard for the safety of persons or property. Based on a jury charge given by the trial court, Costley was also found guilty of the lesser included offense of second degree homicide by vehicle in violation of OCGA § 40-6-393 b. The trial court merged the convictions on count two and on the lesser included offense into the conviction on count one and sentenced Costley to serve 15 years in confinement on count one. Costley appeals from the judgment of conviction and sentence entered on count one. 1. We agree with Costley that the decision in Cooper v. State , 277 Ga. 282 587 SE2d 605 2003 finding provisions of the implied consent statute OCGA § 40-5-55 a unconstitutional mandates reversal of his August 2001 conviction on count one.
The conviction on count one was based on evidence obtained pursuant to the implied consent provisions of OCGA § 40-5-55 a that Costley violated OCGA § 40-6-391 a 6 by operating the vehicle while under the influence of methamphetamine or amphetamine. The implied consent statute provides in relevant part that any person who operates a motor vehicle upon the highways or elsewhere throughout this state shall be deemed to have given consent, subject to Code Section 40-6-392, to a chemical test or tests of his or her blood, breath, urine, or other bodily substances for the purpose of determining the presence of alcohol or any other drug, if arrested for any offense arising out of acts alleged to have been committed in violation of Code Section 40-6-391 or if such person is involved in any traffic accident resulting in serious injuries or fatalities. OCGA § 40-5-55 a. Accordingly, OCGA § 40-5-55 a provides that a driver is deemed to have given consent to the stated chemical tests under two circumstances: 1 “if the driver is arrested for any offense arising out of acts alleged to have been committed in violation of Code Section 40-6-391,” or 2 “if the driver is involved in any traffic accident resulting in serious injuries or fatalities.” It is undisputed that Costley was not arrested after the fatal crash for any offense in violation of OCGA § 40-6-391 nor was there probable cause to arrest him for any such violation. Nevertheless, a State Patrol officer determined that Costley was deemed by the implied consent provisions of OCGA § 40-5-55 a to have given consent to the stated chemical tests because he was a driver involved in an accident resulting in a fatality.
