We granted defendant Michelle Ayers' interlocutory appeal to address whether Love v. State, 271 Ga. 398, 402 (3) (517 SE2d 53) (1999), applies to an indictment which charges reckless driving 1 and first degree vehicular homicide through reckless driving. 2 We conclude that it does not, and affirm the superior court's refusal to dismiss the charges that Ayers violated OCGA 40-6-390 and 40-6-393 (a).

A Chatham County grand jury returned an 11-count indictment charging Michelle Ayers with numerous traffic offenses stemming from her fatal collision with a 13-year-old child who was riding a bicycle on the side of the roadway. Ayers' blood sample revealed metabolites of marijuana. She moved to dismiss five of the charges alleging marijuana in her blood on the basis of Love v. State. In that case it was determined that OCGA 40-6-391 (a) (6) 3 was unconstitutional as a denial of equal protection in that those whose marijuana use was legally sanctioned could not be convicted simply on the basis of the presence of marijuana metabolites in their bodily fluids, while those whose marijuana use was not legally sanctioned could be. Love, supra at 402 (3). See OCGA 40-6-391 (b). 4 The superior court dismissed three of the counts against Ayers which were premised on OCGA 40-6-391 (a) (6), but refused to dismiss the other two: Count 3 alleging that Ayers committed reckless driving in violation of OCGA 40-6-390 (a); and Count 7 alleging that Ayers committed first degree vehicular homicide in violation of OCGA 40-6-393 (a) by reckless driving as alleged in Count 3.

Ayers argues that Love requires dismissal of the two charges because 1) they are based on a violation of OCGA 40-6-391 (a) (6) or (a) (2); 2) Love also controls OCGA 40-6-391 (a) (2) 5 because OCGA 40-6-391 (b) applies to all provisions of OCGA 40-6-391 (a); and 3) OCGA 40-6-391 (a) (2) is unconstitutional as violative of equal protection. 6 But, the premise of the contentions of unconstitutionality is that the two counts of the indictment at issue charge Ayers with violations of the driving under the influence statute, OCGA 40-6-391. And that is not the case.

Ayers is charged with driving

in reckless disregard for the safety of persons and property upon said roadway by driving at a speed greater than was reasonable and prudent under the existing weather conditions, by attempting to pass another vehicle when such was not safe to do so while said accused was mentally and physically fatigued and while said accused possessed marijuana within her blood . . .

(emphasis supplied), and vehicular homicide in the first degree based upon the same circumstances of reckless driving.

As Ayers concedes, Love does not apply to a charge of reckless driving or vehicular homicide based on reckless driving. Nothing in Love implied that reckless driving based on marijuana consumption could not be prosecuted. The violation of equal protection found in Love was grounded in the recognition that legal marijuana users pose the same threat as illegal users when controlling a moving vehicle, making disparate treatment without a rational basis. Love at 403 (3). In prosecution of the two counts at issue, it does not matter

violating this Code section; provided, however, that such person shall not be in violation of this Code section unless such person is rendered incapable of driving safely as a result of using a drug other than alcohol which such person is legally entitled to use.

whether Ayers consumed the marijuana legally or illegally. The charges merely include the fact that marijuana was found in Ayers' blood because it is relevant to the jury's determination that Ayers drove "in reckless disregard for the safety of persons or property," which is what the State must prove beyond a reasonable doubt. See OCGA 40-6-390 (a); see also Hill v. State, 207 Ga. App. 65, 66 (1) (426 SE2d 915) (1993); Johnson v. State, 179 Ga. App. 21, 24 (4) (345 SE2d 123) (1986). The State does not, as Ayers implies, have to prove her guilty of driving under the influence of marijuana in violation of OCGA 40-6-391.

Kermit N. McManus, Kenneth B. Hodges III, J. David Miller, District Attorneys, Joseph F. Burford, Assistant District Attorney, David H. Mosley, Leslie C. Abernathy, Roxann G. Daniel, Sheryl B. Jolly, Solicitors, amici curiae.