concurring specially.
Although I agree that Reynolds’ conviction should be reversed, I disagree with the majority’s interpretation of OCGA § 40-6-395 (a). The statute requires that an officer give both an audible and a visual signal before a conviction for eluding an officer is proper.
Although the first and second sentences of the statute can be interpreted to be contradictory, there is also an equally valid interpretation which presents no ambiguity. “Where there is an apparent conflict between different sections of the same statute, the duty of a court is to reconcile them, if possible, so as to make them consistent and harmonious with one another.” Board of Trustees &c. v. Christy, 246 Ga. 553, 555 (1) (272 SE2d 288) (1980). In this instance, the unambiguous interpretation of the statute is that the second sentence simply defines the alternative methods in which the visual and audible signals may be given. In other words, the visual signal may be by hand or emergency light and the audible signal may be by voice or siren.
Furthermore, even if the two sentences are read so as to create an ambiguity, Reynolds’ conviction must be reversed. In light of the ambiguity, we are mindful that “[c]riminal statutes must be construed strictly against the State and in favor of the accused.” Palmer v. State, 260 Ga. 330, 331 (393 SE2d 251) (1990). The purpose of OCGA *632§ 40-6-395 (a) “is to ensure the offense of ‘attempting to elude’ is not found unless the evidence allows a rational jury to conclude beyond a reasonable doubt that the person fleeing could not reasonably mistake the pursuing police car for something else.” Cook v. State, 180 Ga. App. 877, 878 (1) (350 SE2d 847) (1986). The inclusion of the word “and” in the first sentence of the statute indicates that the legislature intended that both signals were necessary to effect this purpose. See generally Reed v. State, 205 Ga. App. 209 (1) (422 SE2d 15) (1992) (fact that the indictment alleging violation of OCGA § 40-6-395 contained “or” and not “and” was not fatal because the indictment was amended at trial). Prior to the 1990 revision of the statute, effective January 1, 1991, the first sentence of the statute contained the word “or” instead of the current “and.” The change, requiring even more certain and unambiguous notification that the person must stop than had been required before the change, was made at the same time that the legislature escalated the category of this crime from a misdemeanor to a misdemeanor of a high and aggravated nature. Ga. L. 1990, pp. 2048, 2321, § 5. The change was deliberate.
Decided July 16, 1993. Johnny R. Pannell, for appellant. George C. Turner, Jr., District Attorney, Jeffrey L. Ballew, Assistant District Attorney, for appellee.Accordingly, I conclude that the conviction for eluding an officer should be reversed because of the absence of an audible signal.
I am authorized to state that Presiding Judge Beasley and Judge Smith join in this special concurrence.