Bilbrey v. State, 41978
| Decision Date | 02 July 1985 |
| Docket Number | No. 41978,41978 |
| Citation | 331 S.E.2d 551,254 Ga. 629 |
| Parties | BILBREY v. The STATE. |
| Court | Georgia Supreme Court |
Sidney L. Nation, Nation & Associate, Conyers, for Jim bilbrey.
Robert Mumford, Dist. Atty., Conyers, for the State.
This court granted Bilbrey's interlocutory application to appeal an order of the superior court overruling his motion to quash two counts in a four-count indictment for second degree vehicular homicide. The indictment arises from the death of two persons riding in an automobile which collided with a pickup truck driven by Bilbrey. The counts being challenged are allegations of unintentionally causing the death of another while driving too fast for conditions in violation of OCGA 40-6-180; the indictment on these counts is set out in the statutory language. The other two counts allege a violation of OCGA 40-6-40 by driving on the left-hand side of the roadway; these counts are not involved in this appeal.
The collision occurred at around 8:40 p.m.; it was dark, the road was wet from rain and fog, and the pickup was rounding a curve and traveling downhill. The posted speed was 55 miles per hour. Bilbrey's vehicle was moving at approximately 38-40 miles per hour. The other vehicle was moving at approximately 49 miles per hour; the driver of that vehicle was not charged with violating OCGA 40-6-180.
Bilbrey contends that the charges based on OCGA 40-6-180 should be quashed on the grounds that the statute violates the due process provisions of the state and federal constitutions because its prohibitions are not clearly defined and its terms do not set sufficiently definite standards to be followed by those who enforce the laws. He also contends that an indictment which merely states the statutory language and does not set forth the hazardous condition which allegedly necessitated a speed below the posted speed limit is deficient in that it does not inform the defendant of how or why the state contends the law was violated.
1. In Hardison v. Shepard, 246 Ga. 196, 269 S.E.2d 458 (1980), we rejected a facial attack on the statute at issue which was brought after conviction in a collateral proceeding to declare the defendant an habitual violator. However, we noted in that case that the appellate courts of this state had held similar statutes unconstitutional on due process grounds. See Hayes v. State, 11 Ga.App. 371, 75 S.E. 523 (1912); Howard v. State, 151 Ga. 845, 108 S.E. 513 (1921). This court has held that speed requirements setting a standard of "reasonable and proper, having regard to the traffic and use of such highway" is too indefinite to form the basis of a criminal prosecution, although it is proper to apply the statute in civil actions. Teague v. Keith, 214 Ga. 853, 108 S.E.2d 489 (1959); Strickland v. Whatley, 142 Ga. 802, 83 S.E. 856 (1914); Empire Life Insurance v. Allen, 141 Ga. 413, 81 S.E. 120 (1913).
Appellant urges that we follow the Hayes line of cases and declare the present law unconstitutional. The state contends that Hayes should be overruled; in addition, the state argues that a majority of jurisdictions have upheld similar speed restrictions. See 6 ALR3d 1326; People v. DeCasaus, 150 Cal.App.2d 274 (309 P.2d 835) (1957); Gano v. State, 466 S.W.2d 730 (Tex.1971); State v. Pilcher, 636 P.2d 470 (Utah, 1981); People v. Pupillo, 37 Misc.2d 455, 235 N.Y.S.2d 522 (1962).
In Hayes, supra, the defendant was charged in one count of the indictment with driving "at a rate of speed greater than is reasonable and proper, having regard to the traffic and use of such highway...." Id. at 371, 75 S.E. 523. The court found that part of the indictment based upon the quoted language was insufficient and subject to demurrer. In holding the language too indefinite the court stated that criminal liability Hayes, p. 378, 75 S.E. 523.
In Wilson v. State, 245 Ga. 49, 262 S.E.2d 810 (1980), we upheld our reckless driving statute in a vagueness attack saying that a statute will withstand a due process attack "if its terms furnish a test based on normal criteria which men of common intelligence who come in contact with the statute may use with reasonable safety in determining its command." Wilson, at 53, 262 S.E.2d 810. We held that Hayes would be limited to its facts as "an attempt to set a limit on speed without any criteria for doing so." Wilson, at p. 53, 262 S.E.2d 810.
While OCGA § 40-6-180 standing alone does not meet the constitutional certainty requirements, we find the statute furnishes sufficient criteria when read in conjunction with OCGA § 40-6-181. OCGA § 40-6-181(b) sets the specific maximum lawful speeds for vehicles traveling in specific locations. Paragraph (a) provides "The limits specified in this Code section or established as authorized in this article shall be the maximum lawful vehicle speeds, except when a special hazard exists that requires a lower speed for compliance with Code Section 40-6-180." (Emphasis supplied.) OCGA § 40-6-181(a). When read together, the code sections make it reasonably clear that when a vehicle encounters one of the listed road conditions or other hazards caused by weather or highway conditions, the law requires a reduction in speed below the maximum posted limit. An examination of the cases relied on by the state in support of its contention that OCGA §...
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