State v. Herrera-Bustamante
304 Ga. 259
Ga.2018Background
- In October 2015 Gwinnett County Officer stopped Moises Herrera-Bustamante after observing lane deviation; officer smelled alcohol and marijuana, conducted field sobriety tests, and arrested him for DUI.
- Officer read the statutory implied-consent notice and asked for a breath test; Herrera-Bustamante remained silent for 10–15 seconds, which the officer treated as a refusal; officer later found a partially empty whiskey bottle in the car.
- At trial the prosecutor introduced and argued Herrera-Bustamante’s refusal to take the breath test; the court instructed the jury that refusal was admissible and could support an inference of alcohol, and Herrera-Bustamante did not object at trial.
- Jury convicted Herrera-Bustamante of DUI (less safe) and open container; he filed a motion for new trial raising general grounds, then amended it after this Court’s decision in Olevik v. State, which held that Paragraph XVI of the Georgia Constitution protects the right to refuse breath tests.
- The trial court granted a new trial based on Olevik, but the Georgia Supreme Court held Herrera-Bustamante failed to preserve the objection and did not demonstrate plain error, reversed the grant of a new trial, and remanded for consideration of other grounds in his amended motion.
Issues
| Issue | Herrera-Bustamante's Argument | State's Argument | Held |
|---|---|---|---|
| Whether admission of evidence that defendant refused a breath test violated Paragraph XVI | Refusal is protected by Paragraph XVI; evidence of exercising that right cannot be admitted against him (analogous to invocation of right to silence) | Admission is authorized by OCGA §§ 40-6-392(d) and 40-5-67.1(b); defendant failed to preserve objection at trial | Not preserved for ordinary review; admission did not constitute plain error under current law, so trial court erred in granting new trial on this ground |
| Whether OCGA §§ 40-6-392(d) and 40-5-67.1(b) are facially unconstitutional under Paragraph XVI | Statutes compel admission of refusal evidence in violation of Paragraph XVI as interpreted in Olevik | Statutes are longstanding and authoritatively permit admission; constitutional challenge was not raised at trial | Facial statutory challenge not considered on appeal (not preserved; beyond plain-error review) |
| Applicability of Olevik’s new rule to cases on direct review when issue not raised at trial | Olevik announces new rule protecting refusal; defendant entitled to its benefit despite not objecting at trial | "Pipeline" rule requires preservation of issue at trial to apply new procedural rules | Pipeline rule does not excuse failure to preserve; issue must be timely raised at trial to obtain ordinary review |
| Standard and application of plain-error review to unpreserved evidentiary rulings | Admission of refusal evidence was clearly erroneous under Olevik and existing law, affecting substantial rights | Plain-error relief requires a clear, obvious error and cannot be used to extend precedent or invalidate statutes absent controlling authority | Defendant failed to show the admission was clear and obvious error under current law; plain-error relief denied |
Key Cases Cited
- Olevik v. State, 302 Ga. 228 (Georgia Supreme Court) (held Paragraph XVI protects right to refuse breath tests)
- Miranda v. Arizona, 384 U.S. 436 (U.S. Supreme Court) (prosecution may not use a defendant’s silence in custodial interrogation against him)
- Howard v. State, 237 Ga. 471 (Georgia Supreme Court) (it is reversible error to instruct that silence in custody may amount to an admission)
- Klink v. State, 272 Ga. 605 (Georgia Supreme Court) (overruled in part by Olevik to the extent it rejected Paragraph XVI protection for breath tests)
- Taylor v. State, 262 Ga. 584 (Georgia Supreme Court) (pipeline rule: new procedural rules apply to cases on direct review only if issue was preserved)
- Simmons v. State, 299 Ga. 370 (Georgia Supreme Court) (plain-error review requires clear or obvious error under current law)
- Gates v. State, 298 Ga. 324 (Georgia Supreme Court) (plain-error review of unpreserved evidentiary rulings under OCGA § 24-1-103(d))
- Lupoe v. State, 300 Ga. 233 (Georgia Supreme Court) (elements required to show plain error)