State v. Herrera-Bustamante
304 Ga. 259
Ga.2018Background
- Herrera-Bustamante was stopped after erratic driving; officer smelled alcohol, observed poor balance, and administered field sobriety tests showing impairment. He was arrested for DUI and an open container was found in the car.
- At booking the officer read the statutory implied consent notice and asked for consent to a breath test; Herrera-Bustamante sat silently for 10–15 seconds, which the officer treated as a refusal.
- At trial the prosecutor elicited the refusal and argued it to the jury; the trial court instructed the jury that refusal could be considered as evidence (an inference may be drawn). Herrera-Bustamante did not object at trial.
- The jury convicted him of DUI (less safe) and open-container; he filed a motion for new trial raising general and other grounds; after Olevik v. State was decided (holding Georgia Constitution protects right to refuse breath tests), he amended the motion to argue the refusal evidence was unconstitutional.
- The trial court granted a new trial based solely on Olevik; the State appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of refusal evidence | Herrera-Bustamante: Evidence of his refusal to take a breath test is inadmissible because the Georgia Constitution (Paragraph XVI) protects against compelled acts and such evidence penalizes exercise of that right. | State: Statutes and long-standing precedent permit admission of refusal evidence; admission was proper. | Reversed: Defendant failed to preserve the claim at trial and plain-error review fails because extending Olevik to bar refusal evidence would be a novel extension of precedent and require striking statutes. |
| Preservation / pipeline rule | Herrera-Bustamante: Olevik announced a new rule applicable to cases not yet final, so he can benefit despite not raising the claim at trial. | State: Pipeline rule applies only if the issue was preserved; constitutional challenges must be raised at first opportunity. | Held: Claim not preserved; pipeline rule does not waive preservation requirement. |
| Plain-error review availability | Herrera-Bustamante: Even if unpreserved, admission was plain error affecting substantial rights. | State: Plain-error standard requires error to be clear under controlling precedent; here precedent and statutes support admission. | Held: No plain error — controlling authority and statutes supported admission; defendant’s theory would extend precedent, so plain-error relief not available. |
| Scope of review / remand | Herrera-Bustamante: Trial court granted new trial only on refusal-evidence ground; other claims remain. | State: Appeal should overturn the new-trial grant and remand if appropriate. | Held: Reversed the new-trial grant and remanded for the trial court to consider the defendant’s other asserted grounds. |
Key Cases Cited
- Olevik v. State, 302 Ga. 228 (2017) (Georgia Constitution protects right to refuse compelled breath tests)
- Miranda v. Arizona, 384 U.S. 436 (1966) (prosecution may not use a defendant's silence in custodial interrogation against him)
- Howard v. State, 237 Ga. 471 (1976) (Georgia court applying Miranda holding that instructing jury that silence may amount to admission is reversible error)
- Taylor v. State, 262 Ga. 584 (1992) (pipeline rule: new procedural rules apply to cases on direct review only if issue preserved)
- Gates v. State, 298 Ga. 324 (2016) (plain-error review under Georgia Evidence Code)
- Simmons v. State, 299 Ga. 370 (2016) (plain-error review of alleged Fifth Amendment self-incrimination violations)
- Lupoe v. State, 300 Ga. 233 (2016) (elements for showing plain error)
- Klink v. State, 272 Ga. 605 (2000) (overruled in part by Olevik regarding breath tests)
- Emmett v. State, 195 Ga. 517 (1943) (older authority on admissibility of pretrial silence)