2021 Georgia Code
Title 40 - Motor Vehicles and Traffic
Chapter 6 - Uniform Rules of the Road
Article 15 - Serious Traffic Offenses
§ 40-6-394. Serious Injury by Vehicle

1. As used in this Code section, the term "bodily harm" means an injury to another person which deprives him or her of a member of his or her body, renders a member of his or her body useless, seriously disfigures his or her body or a member thereof, or causes organic brain damage which renders his or her body or any member thereof useless.
2. Any person who, without malice aforethought, causes an accident that results in bodily harm while violating Code Sections 40-6-390 through 40-6-391 commits the crime of serious injury by vehicle. A person convicted of violating this subsection shall be guilty of a felony and shall be punished by imprisonment for not less than one year nor more than 15 years.
3. Any person who, without malice aforethought, proximately causes an accident that the person knew resulted in bodily harm and leaves the scene of the accident in violation of subsection (b) of Code Section 40-6-270 commits the crime of serious injury by vehicle; provided, however, that there shall be no violation of this subsection if the parties involved in the accident exchange motor vehicle insurance information prior to leaving the scene of the accident. A person convicted of violating this subsection shall be guilty of a felony and shall be punished by imprisonment for not less than one year nor more than ten years.

(Code 1933, § 68A-903.1, enacted by Ga. L. 1979, p. 768, § 1; Ga. L. 1985, p. 758, § 18; Ga. L. 1989, p. 232, § 1; Ga. L. 1990, p. 2048, § 5; Ga. L. 1999, p. 391, § 10; Ga. L. 2019, p. 491, § 3/SB 1; Ga. L. 2021, p. 228, § 9/HB 534.)

The 2019 amendment, effective July 1, 2019, rewrote this Code section, which read: "Whoever, without malice, shall cause bodily harm to another by depriving him of a member of his body, by rendering a member of his body useless, by seriously disfiguring his body or a member thereof, or by causing organic brain damage which renders the body or any member thereof useless through the violation of Code Section 40-6-390 or 40-6-391 shall be guilty of the crime of serious injury by vehicle. A person convicted under this Code section shall be guilty of a felony and shall be punished by imprisonment for not less than one year nor more than 15 years."

The 2021 amendment, effective May 3, 2021, substituted "Code Sections 40-6-390 through 40-6-391" for "Code Section 40-6-390 or 40-6-391" in the first sentence of subsection (b). See Editor's notes for applicability.

- Maintenance of separate causes of action for personal injury and property damage caused by single act of wrongful or negligent operation of motor vehicle, § 51-1-32.

- Ga. L. 1999, p. 391, § 2, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as 'Heidi's Law.'"

Ga. L. 2019, p. 491, § 1/SB 1, not codified by the General Assembly, provides: "This Act shall be known and may be cited as 'C.J.'s Law.'"

Ga. L. 2021, p. 228, § 11/HB 534, not codified by the General Assembly, provides that: "This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval and shall apply to all offenses committed on and after such date." This Act was approved by the Governor on May 3, 2021.

- For article on the 2019 amendment of this Code section, see 36 Ga. St. U.L. Rev. 145 (2019). For note on the 1989 amendment to this Code section, see 6 Ga. St. U.L. Rev. 281 (1989).

JUDICIAL DECISIONS

Constitutionality.

- O.C.G.A. § 40-6-394 was not unconstitutional as applied to the defendant, who was also convicted of a DUI, when the evidence showed that a passenger in the car the defendant hit had the passenger's legs shattered in several places, had numerous surgeries, and had difficulty walking. Pecina v. State, 274 Ga. 416, 554 S.E.2d 167 (2001).

§ 40-6-391(a)(4). - State was not required to prove that a defendant was committing any traffic violation or unsafe act, in addition to a violation of O.C.G.A. § 40-6-391(a)(4); it is sufficient that the evidence showed that the defendant's violation of § 40-6-391 caused an injury such as described in O.C.G.A. § 40-6-394. Jones v. State, 195 Ga. App. 569, 394 S.E.2d 387 (1990); Moss v. State, 209 Ga. App. 59, 432 S.E.2d 825 (1993).

- Indictment charging the defendant with serious injury by vehicle based on both reckless driving and driving under the influence was defective and, therefore, counsel was ineffective for failing to file a general demurrer because the indictment failed to include the language that the defendant drove with reckless disregard for the safety of persons or property and it neither recited the language that the defendant was under the influence of alcohol to the extent that it was less safe for the defendant to drive or that the defendant's alcohol concentration was 0.08 or more nor alleged the facts necessary to establish violation of the driving under the influence statute. Heath v. State, 349 Ga. App. 84, 825 S.E.2d 474 (2019), aff'd, 308 Ga. 836, 843 S.E.2d 801 (2020).

- Trial court did not err by failing to merge a reckless-driving charge into a serious-injury-by-vehicle charge because the two crimes were entirely separate and distinct, requiring a showing of different elements and based on the defendant's drunk driving of a four-wheeler ATV with a 10-year-old passenger, who was brain-damaged when the defendant clipped a tractor and flipped the ATV; the state used the evidence of the clipping of the tractor scoop, which caused the rollover and injury to the child, as the elements of the serious-injury-by-vehicle offense, which was separate from and sequential to the reckless-driving offense, which was premised on the defendant's intoxication. Croft v. State, 278 Ga. App. 107, 628 S.E.2d 144 (2006).

- General demurrer to charges of serious injury by vehicle against the defendant was properly denied because whether broken bones constituted serious disfigurement under O.C.G.A. § 40-6-394 depended on the facts of the case; further, the indictment tracked the language of the statute and sufficiently advised the defendant of the charges against the defendant. Harris v. State, 272 Ga. App. 366, 612 S.E.2d 557 (2005).

- Issues of whether two-inch scar and temporary uselessness of leg sustained by automobile occupants constituted serious injuries within the meaning of O.C.G.A. § 40-6-394 were jury questions and the evidence was sufficient to support finding of such injuries. Keef v. State, 220 Ga. App. 134, 469 S.E.2d 318 (1996).

When the defendant pled guilty to homicide by vehicle and serious injury by vehicle, the defendant should have been allowed to withdraw the plea after defendant discovered that the state deliberately withheld exculpatory evidence regarding calculation of the defendant's speed and road conditions. Carroll v. State, 222 Ga. App. 560, 474 S.E.2d 737 (1996).

Evidence was sufficient to convict the defendant under O.C.G.A. § 40-6-394, although the victim's legs were not rendered permanently useless; evidence that the victim's walking was seriously impaired was sufficient. Adams v. State, 259 Ga. App. 570, 578 S.E.2d 207 (2003).

Evidence showing, inter alia, that the victim suffered a concussion requiring transport by ambulance to the hospital, needed stitches in the victim's head, required knee surgery, and suffered injury that prevented proper function of the victim's wrist and thumb two years after the collision was sufficient to support a conviction for serious injury by vehicle. King v. State, 262 Ga. App. 37, 584 S.E.2d 652 (2003).

Defendant was properly found guilty of causing serious injury by vehicle as a result of struggling with the arresting officer while attempting to be handcuffed, attempting to flee while the officer was in the doorway of the vehicle, and the officer being thrown from the vehicle, causing a broken arm and a dislocated shoulder. Dorsey v. State, 327 Ga. App. 226, 757 S.E.2d 880 (2014).

Trial court was authorized to find that the injury to the husband, multiple rib fractures and bruising, and the wife's dislocated finger and head laceration rose to the level of serious disfigurement for purposes of the defendant's convictions for serious injury by vehicle. Bray v. State, 330 Ga. App. 768, 768 S.E.2d 285 (2015), cert. denied, No. S15C0988, 2015 Ga. LEXIS 391 (Ga. 2015).

- With regard to a defendant's convictions for improper lane change, serious injury by vehicle while driving under the influence, and misdemeanor obstruction of an officer, there was sufficient evidence to support the convictions based on an officer's testimony that the defendant attempted to leave the scene several times and the evidence of the defendant's vehicle passenger suffering a severe injury to the left eye. It was unnecessary to show that the passenger's eye was permanently rendered useless. Wells v. State, 297 Ga. App. 153, 676 S.E.2d 821 (2009).

- After a review of the evidence surrounding the auto accident which the defendant caused while under the influence of methamphetamine, with the defendant's four-year-old son as a passenger, and in which the defendant rear-ended the driver in front of the defendant causing that driver to become paralyzed from the neck down, when coupled with the testimony of two law enforcement officers who were at the scene and described the defendant's erratic behavior after the collision, the defendant's serious injury by vehicle, driving under the influence of methamphetamine, and endangering a child by driving under the influence convictions were supported by the evidence. Duncan v. State, 281 Ga. App. 270, 635 S.E.2d 875 (2006).

Sufficient evidence supported defendant's conviction for serious injury by vehicle because the defendant drove into a tree while operating a vehicle containing three children as passengers, resulting in a fatality and other serious injuries, a clear plastic bottle containing 77 proof alcohol was found on the floorboard, and the defendant's blood alcohol content was 0.207 grams. Crowe v. State, 314 Ga. App. 527, 724 S.E.2d 831 (2012).

Evidence was sufficient to support convictions for homicide by vehicle and serious injury by vehicle as the jury was entitled to find the defense expert's testimony conflicted with and was less credible than the account of the eyewitness driving in front of the defendant's car at the time of the collision, who testified that the defendant's car veered left and into another car, and the evidence showed that the defendant fled and had damage to the defendant's car repaired. Michael v. State, 335 Ga. App. 579, 782 S.E.2d 479 (2016).

Evidence was sufficient to convict the defendant of serious injury by vehicle because the defendant told a police officer and a nurse that the defendant had been driving the vehicle; although the defendant later recanted that admission, the jury was authorized to believe the defendant's earlier statements; the victim testified about the injuries to the victim's leg, that it was essentially useless for months, and that the victim still used leg braces; and the state met the state's burden of establishing a causal connection between the defendant's violation of the driving under the influence statute and the serious injury by vehicle statute as the defendant admitted to driving the car and to drinking in the car. Fitzpatrick v. State, 339 Ga. App. 135, 793 S.E.2d 446 (2016).

Sufficient evidence supported the appellant's convictions for vehicular homicide and serious bodily injury based on the state presenting testimony of an expert in pharmacology and toxicology that the drugs in the appellant's system would have made the appellant a hazardous driver and that the appellant was severely impaired, along with evidence that the vehicle appellant was driving crossed the center line and killed two people. Dickson v. State, 339 Ga. App. 500, 793 S.E.2d 663 (2016).

Evidence was sufficient to convict the defendant of serious injury by vehicle and reckless driving because the defendant drifted into the victim's lane and did not change lanes; as the victim attempted to avoid the defendant's van, the defendant crossed back into the defendant's lane and struck the victim's car; the victim was hospitalized for almost two months and suffered severe injuries and received physical and occupational therapy to learn to walk again, but the victim was not able to resume teaching dance based on the victim's wheelchair restrictions; and, although the defendant contended that the evidence showed that the collision was accidental rather than reckless, the jury resolved conflicts in the evidence against the defendant. Pefinis v. State, 344 Ga. App. 428, 810 S.E.2d 329 (2018), cert. denied, 2018 Ga. LEXIS 514 (Ga. 2018).

- In connection with the defendant's conviction for reckless driving, causing serious bodily injury due to reckless driving, and other crimes, the trial court abused the court's discretion in granting the state's motion in limine to exclude the defendant's evidence of the design of the intersection where the accident occurred prior to the wreck as such evidence was relevant to the defendant's defense of accident. Dunagan v. State, 283 Ga. 501, 661 S.E.2d 525 (2008).

- As there was no duty on a police officer under O.C.G.A. § 40-6-394 to prevent or mitigate injuries that were caused by the defendant's reckless and intoxicated driving, there was no abuse of discretion in the trial court's refusal to admit evidence regarding whether the officer, who was responding to the scene of an ongoing crime, was wearing a seat belt at the time that the officer had to swerve the police cruiser in order to avoid a collision with the defendant's vehicle. Potts v. State, 296 Ga. App. 242, 674 S.E.2d 109 (2009).

- Five convictions for serious injury by vehicle and a conviction for vehicular homicide did not merge; although the convictions stemmed from one incident of driving under the influence, there were separate victims for each offense. Harris v. State, 272 Ga. App. 366, 612 S.E.2d 557 (2005).

- Trial court properly did not merge the appellant's convictions for cruelty to children in the second degree and serious injury by vehicle by the act of reckless driving with respect to the same victim for the purpose of sentencing because each offense required proof of a different wrongful act as the cruelty to children conviction required proof of facts not required by the serious injury by vehicle conviction and vice versa. McNeely v. State, 296 Ga. 422, 768 S.E.2d 751 (2015).

Video tape depicting the rehabilitation of a victim was not inflammatory and unduly prejudicial in that the videotape illustrated the extent of the victim's injuries which is necessary under O.C.G.A. § 40-6-394 . Dudley v. State, 204 Ga. App. 327, 419 S.E.2d 138 (1992).

- Proof that the defendant was guilty of driving under the influence (DUI) under O.C.G.A. § 40-6-391 was a required element for convicting the defendant of serious injury by vehicle under O.C.G.A. § 40-6-394, and while proof of serious injury by vehicle also required proof of an additional element, bodily harm, the DUI charge included no element that was not also contained in the crime of serious injury by vehicle; accordingly, the Blockburger test was not met, and the subsequent indictment for serious injury by vehicle violated the double jeopardy clause of the Fifth Amendment. Thus, the defendant's plea in bar was a valid exercise of the federal double jeopardy clause. Garrett v. State, 306 Ga. App. 429, 702 S.E.2d 470 (2010).

- Jury instruction defining the offense of serious injury by vehicle that listed as an element disfigurement to the victim's "body or a member thereof" did not require the defendant to defend against an allegation of which the indictment had not provided the defendant with notice; furthermore, when the final charge was viewed as a whole, there was no reasonable probability that the cited language confused or misled the jury. Karafiat v. State, 290 Ga. App. 15, 658 S.E.2d 801 (2008).

Jury instruction for serious injury by vehicle as given was not plain error because the charge that the defendant's counsel requested was substantially similar to the charge that the trial court gave; the trial court charged the jury that no person could be convicted of any crime unless and until each element of the crime as charged was proven beyond a reasonable doubt; and a conviction under the serious injury by vehicle statute as charged did not require a conviction under the driving under the influence statute. Fitzpatrick v. State, 339 Ga. App. 135, 793 S.E.2d 446 (2016).

- Defendant was not prejudiced by a challenged juror's conduct in communicating with a state witness, namely, a police officer as: (1) the alleged improper communication was innocent; (2) the case was never discussed; and (3) once the involvement was discovered, the conversation immediately ended; hence, the trial court did not abuse the court's discretion in denying a mistrial. Duncan v. State, 281 Ga. App. 270, 635 S.E.2d 875 (2006).

- It was not error for the trial court to allow the victim, who had been left a quadriplegic by a collision with the defendant, to appear before the jury so that the state could show the extent of the victim's injuries as required under O.C.G.A. § 40-6-394. Dunagan v. State, 286 Ga. App. 668, 649 S.E.2d 765 (2007), reversed on other grounds, 283 Ga. 501, 661 S.E.2d 525 (2008).

- Conviction for serious injury by vehicle was not void as the resolution of whether the victim died immediately upon impact was for the jury. Taylor v. State, 295 Ga. App. 689, 673 S.E.2d 7, aff'd, 286 Ga. 328, 687 S.E.2d 409 (2009).

- Given that a charge of DUI served as the predicate act underlying a charge of serious injury by vehicle, thus constituting a lesser included crime of the serious injury by vehicle, O.C.G.A. § 16-1-7(a) barred conviction of and punishment for both; hence, in light of this incongruence, the defendant's DUI conviction and sentence, as well as the sentence for serious injury by vehicle, were vacated. Hannah v. State, 280 Ga. App. 230, 633 S.E.2d 800 (2006).

Cited in Holman v. State, 329 Ga. App. 393, 765 S.E.2d 614 (2014).

RESEARCH REFERENCES

Am. Jur. 2d.

- 7A Am. Jur. 2d, Automobiles and Highway Traffic, §§ 362, 366.

- 61A C.J.S., Motor Vehicles, §§ 1574 et seq. 1597, 1607, 1623 et seq.

- Motorist's liability for striking person lying in road, 41 A.L.R.4th 303.