dissenting. Defendant was tried and convicted for causing the homicide of another person while defendant was driving an automobile under the influence of alcohol. The district attorney in his opening statement told the jury that appellant had been requested to take an alcohol test which he had refused *143to do. Motion for mistrial was promptly made, and overruled. Thereafter, several witnesses for the state testified that defendant had refused to take such alcohol test, to which testimony defendant objected, and his objections were overruled.
The introduction of such evidence, as well as the statement to the jury by state’s counsel, were prejudicial to defendant, and were erroneous as a matter of law. This whole court considered this matter very carefully, and in a divided opinion (6 to 3) held that injecting into the case the defendant’s failure to take the alcohol test, over his objection, is error requiring a reversal and a new trial. See Johnson v. State, 125 Ga. App. 607 (2) (188 SE2d 416), with three judges dissenting, to wit, Judges Hall, Eberhardt and Pannell. Also see Judge Deen’s comprehensive concurring opinion in the above case.
But the majority opinion, while seeming to recognize the error, citing the Johnson case, supra, seeks to avoid the force of that case by stating that defendant in the case sub judice waived its benefits. The waiver, it is contended, came about when defendant’s counsel asked him, while on the witness stand: "Now, when the officers wanted to give you a test and you wouldn’t take a test, did they have a hearing before the public service . . . before the patrol, state patrol? A. Yes, sir.”
The position taken by the majority would have been correct prior to enactment by the General Assembly of Bill No. 445 (House Bill No. 591), which was approved on April 5, 1971 (see Ga. L. 1971, p. 460). This Act provides for a new Code § 38-1713, to read as follows: "If, on direct examination of a witness, objection is made to the admissibility of evidence, neither cross examination of the witness on the same subject matter, nor the introduction of evidence on the same subject matter shall constitute a waiver of the objection made on direct examination.” (Emphasis supplied.)
Confronted with this new statute, and in view of our *144decision in Johnson v. State, 125 Ga. App. 607, supra, I feel that a reversal of the lower court and the grant of a new trial is absolutely demanded. I, therefore, vote to reverse the trial court for the above reasons.
I am authorized to state that Judges Been and Clark join in this dissent.