State v. Henry, 312 Ga. 632

On June 17, 2017, Georgia State Patrol stopped Kemar Henry, administered field sobriety tests and a breath/alco-sensor test, then arrested him for DUI.
The officer read the implied-consent notice; Henry asked about taking the breath test “one more time” and whether his doctor could do his blood test; the interaction was ambiguous on video and the officer testified Henry quietly consented to a state blood draw.
The GBI tested Henry’s blood and reported a BAC of 0.085; Henry’s counsel later obtained an order for independent testing, but no independent test was performed.
Henry was convicted; he moved for a new trial alleging ineffective assistance of counsel for failing to object to admission of the GBI blood result because Henry had requested independent testing. The trial court denied the motion.
The Court of Appeals reversed under Ladow v. State’s “reasonably could” standard, finding counsel ineffective. The Georgia Supreme Court granted certiorari to decide the correct standard.
The Supreme Court rejected the Court of Appeals’ “reasonably could” test, adopted a “reasonably would” standard (analogous to Davis/Miranda clarity), overruled Ladow, reversed the Court of Appeals, and remanded for reconsideration under the proper standard.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Proper standard to determine whether a suspect invoked the right to independent chemical testing under OCGA § 40-6-392(a)(3)	State: Ladow’s “reasonably could” is incorrect; standard should require clarity	Henry: His statements met the then-applicable “reasonably could” standard and invoked the right	Court: Adopted a "reasonably would" standard (a reasonable officer would understand the request); overruled Ladow
Whether an officer’s failure to obtain an independent test is "justifiable" when officer says he did not understand the request	State: Failure is justifiable if a reasonable officer would not have understood the suspect to be requesting an independent test	Henry: Officer should have understood request; failure therefore unjustifiable	Court: "Justifiable" means the officer’s conduct must be excusable; failure is unjustifiable when a reasonable officer would have understood the request; ambiguous/equivocal statements permit a justifiable failure
Whether trial counsel rendered ineffective assistance by not objecting to admission of state blood test	Henry: Counsel deficient and prejudice because independent testing was denied and blood result admitted	State: Counsel acted consistent with prevailing law; no deficiency	Court: Court of Appeals used wrong standard; remanded to reassess ineffective assistance under the new "reasonably would" standard

Ladow v. State, 256 Ga. App. 726 (Court of Appeals decision establishing the "reasonably could" formulation)
Henry v. State, 355 Ga. App. 217 (Court of Appeals decision reversing trial court under Ladow)
Strickland v. Washington, 466 U.S. 668 (establishes ineffective-assistance two-prong test)
Davis v. United States, 512 U.S. 452 (requirement that requests for counsel be clear so reasonable officer would understand)
Lockhart v. Fretwell, 506 U.S. 364 (prejudice inquiry and effect of subsequent legal developments on Strickland claims)
Miranda v. Arizona, 384 U.S. 436 (Miranda framework informing clarity/requirement analogies)
Church v. State, 210 Ga. App. 670 (earlier Court of Appeals decision considered in Ladow’s lineage)
Magher v. State, 199 Ga. App. 508 (Court of Appeals decision addressing communication of desire for additional testing)
Wright v. State, 338 Ga. App. 216 (later Court of Appeals case discussing clarity standard)