S22A0542. AMMONS v. THE STATE.
S22A0542
SUPREME COURT OF GEORGIA
November 2, 2022
BETHEL, Justice.
The Honorable Supreme Court met pursuant to adjournment. The following order was passed:
Upon consideration, the Court has revised the deadline for motions for reconsideration in this matter. It is ordered that a motion for reconsideration, if any, including motions submitted via the Court‘s electronic filing system, must be received in the Clerk‘s Office by 2 p.m. on Wednesday, November 9, 2022.
SUPREME COURT OF THE STATE OF GEORGIA
Clerk‘s Office, Atlanta
I certify that the above is a true extract from the minutes of the Supreme Court of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written.
, Clerk
NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court‘s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court‘s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: November 2, 2022
S22A0542. AMMONS v. THE STATE.
Mia Ammons is being prosecuted for driving under the influence of alcohol. She largely refused to cooperate when the state trooper who pulled her over sought to perform a preliminary breath test and various field sobriety tests, and she later refused to consent to a blood test for which no search warrant had been obtained by the police. She claims that any use of evidence of her refusal to perform the breath and field sobriety tests violates her right against self-incrimination under the Georgia Constitution. She similarly argues that two Georgia statutes that permit evidence of her refusal to consent to a blood test to be used against her violate the General Assembly‘s constitutional duty to enact laws that protect Georgia citizens in the full enjoyment of their rights, privileges, and immunities as citizens.
The trial court denied Ammons‘s motion to suppress evidence from the roadside stop, including her refusal to participate in a number of these tests, concluding that her constitutional arguments failed. We granted Ammons‘s application for interlocutory review of the trial court‘s decision.
As explained below, Ammons had the right to refuse to perform the preliminary breath test and the field sobriety tests under the Georgia Constitution, and evidence of her refusals cannot be introduced at her trial. We also determine that the Georgia Constitution‘s privileges and immunities clause does not bar the admission of evidence that she refused to consent to a blood test. We therefore affirm in part and reverse in part the trial court‘s denial of Ammons‘s motion to suppress.
1. Background
Ammons was charged with driving under the influence (less safe) pursuant to
The record of the hearing on Ammons‘s motion to suppress shows the following. Just after midnight on July 14, 2018, Ammons was driving her vehicle on a state highway in Paulding County when she was stopped by State Trooper Levi Perry because her car did not have a working light illuminating her license plate. After approaching Ammons‘s car and smelling alcohol on her breath, Trooper Perry asked Ammons to step out of her car. Ammons did so. Trooper Perry testified that he “immediately noticed” that Ammons was “extremely unsteady.” In response to questions from Trooper Perry, Ammons said that she had consumed alcohol “a few hours prior” to the stop and that “she had a few beers.” Trooper Perry testified that, during their discussion, he noticed that Ammons had “bloodshot watery eyes,” seemed “withdrawn,” and had slurred speech.
As their conversation continued, Trooper Perry asked Ammons if she would provide a breath sample for a preliminary breath test. She refused. Trooper Perry then asked Ammons to stand with her back against his patrol car and asked her if she had any medical conditions. She replied that, other than needing to wear glasses, she did not. Trooper Perry then directed Ammons to “look straight at [him] and [to] follow the tip of [his] finger with her eyes only.” Ammons then did so for a brief period of time. Noting in his testimony that this was part of a horizontal gaze nystagmus (HGN) test,
Trooper Perry then began directing Ammons to perform a “walk and turn” test, but she refused to participate. Trooper Perry then arrested Ammons for DUI and read her the Georgia implied consent warning for suspects over the age of 21 and requested that that she provide a blood sample.2 Ammons refused to answer when Trooper Perry asked her if she consented.
Trooper Perry testified that both a dashboard camera and a body camera he was wearing at the time recorded his interactions with Ammons. Both recordings were admitted at the hearing on the motion to suppress.
At the hearing, Trooper Perry testified that
[t]he purpose of the field sobriety and advanced roadside and impairment detection is to determine whether or not that person is indeed impaired to both give them the opportunity to counteract any initial suspicion and to . . . determine what level of impairment there is.
Trooper Perry testified that the standard battery of field sobriety tests begins with an assessment of the suspect‘s medical conditions, such as recent head trauma or any problems with the suspect‘s neck, back, or legs. Once it has been ascertained that no such conditions are present, an HGN test is performed, which involves an initial evaluation of “equal tracking” of the eyes between the “ten and two” positions followed by three different evaluations: “detection of lack of smooth pursuit,” “sustained nystagmus at maximum deviation,” and “onset prior to maximum deviation.” These tests require the suspect to follow an object, such as the tip of the officer‘s finger, with her eyes for several seconds. The HGN test evaluates whether there is “involuntary jerking of the eyes either caused by a medical condition or by impairment.”3 Trooper Perry testified that the HGN test requires the suspect‘s participation and that “unless there‘s cooperation you can‘t perform it.” Following an HGN test, a suspect is then asked to perform a “walk and turn” test which is used to determine the suspect‘s motor functions. The suspect is then typically asked to perform a “one-leg stand.”
Following the hearing, the trial court denied Ammons‘s motion to suppress. Ammons moved for reconsideration, and the trial court entered an amended order denying the motion. In its order, the trial court determined that Ammons voluntarily performed the HGN test and that the results of the test were not obtained in violation of her rights under the Georgia Constitution. The court also determined that, under our decision in Keenan v. State, 263 Ga. 569, 571-572 (2) (436 SE2d 475) (1993), Ammons‘s refusal to perform the preliminary breath test could be admitted into evidence and that her refusal to perform field sobriety tests did not implicate her rights against self-incrimination under the Georgia Constitution because she was not in custody at the time of the refusal, citing Keenan and Long v. State, 271 Ga. App. 565, 567-569 (2) (610 SE2d 74) (2004). Finally, the trial court determined that, by allowing a defendant‘s refusal to consent to a warrantless blood test as evidence of guilt in a criminal case, Georgia‘s implied consent statutes,
Ammons timely filed in this Court an application for interlocutory review, which we granted. We directed the parties to address only the following questions:
- Should this Court overrule its holding in [Keenan], that admission of evidence that a defendant refused a roadside alco-sensor test does not violate the Georgia Constitution‘s guarantee of the right against compelled self-incrimination?
- Does the Georgia Constitution‘s guarantee of the right against compelled self-incrimination apply to field sobriety tests, such that evidence that the defendant refused to submit to such tests is inadmissible?
-
Do OCGA §§ 40-5-67.1 or40-6-392 violate the Georgia Privileges and Immunities Clause?
Ammons timely appealed. We now address each of these questions in turn.
2. The Georgia Constitution‘s protection against self-incrimination applies to preliminary breath tests using an alco-sensor and field sobriety tests that require the cooperation of the suspect.
Two years later, in Elliott v. State, 305 Ga. 179, 210 (IV) (824 SE2d 265) (2019), we determined that admission of evidence that the defendant refused to consent to a chemical breath test likewise violates the rights protected by Paragraph XVI, noting that “Paragraph XVI generally prohibits admission of a defendant‘s pretrial refusal to speak or act.” And earlier this year, we recognized that this protection extended to state-administered urine tests. See Awad v. State, 313 Ga. 99, 103 (3) (868 SE2d 219) (2022) (“Under Olevik and Elliott, the right against compelled self-incrimination protected by Paragraph XVI prohibits the State from admitting into evidence a defendant‘s refusal to submit to a urine test when doing so would require a defendant to urinate into a collection container to generate a sample for chemical testing. This collection method necessarily requires a defendant to cooperate with the State by performing an act that generates self-incriminating evidence.“). In Awad, we noted that, like the chemical breath tests at issue in Olevik and Elliott, the urine test involved the State “asking the defendant to affirmatively give the State evidence from the defendant‘s body in a particular manner that is neither natural nor automatic.” 313 Ga. at 103 (3).
(a) Admission of evidence that a defendant refused to provide a breath sample for a preliminary breath test using an alco-sensor violates the Georgia Constitution‘s protection against self-incrimination.
More than two decades before we decided those cases, we suggested in Keenan that this constitutional protection did not apply to the type of preliminary breath test Ammons was asked to submit to in this case. In Keenan, the defendant, who was suspected of driving under the influence, refused to submit to a preliminary breath test that would alert the officer to the presence of alcohol (what is sometimes also referred to as an “alco-sensor” test). See 263 Ga. at 569. In that case, over the defendant‘s objection, the State was permitted to introduce evidence of his refusal to undergo the breath test. See id. at 571 (2). On appeal before this Court, the defendant argued that the Fifth Amendment to the United States Constitution barred introduction of evidence regarding his refusal. See id. This Court held that, because the defendant was not in custody at the time, Miranda warnings5 (which had not been given) were unnecessary, and “evidence of appellant‘s refusal to undergo the alco-sensor test would not be inadmissible as violative of his constitutional right to remain silent.” (Citation omitted.) Id. After also determining that the admission of evidence regarding his refusal did not violate former
That was the first and only mention of the Georgia Constitution in Keenan. Keenan pointed to no specific provision of the Georgia Constitution that was implicated by the issues in the case or that the appellant had argued was violated by the admission of evidence regarding his refusal to consent to the preliminary alco-sensor test. See generally id. And Keenan contained no analysis of any Georgia constitutional provision in support of its apparent holding. See generally id.
As noted above, though, in the years since Keenan was decided, this Court has determined that Paragraph XVI offers a number of protections to a suspect who refuses to cooperate with police during a roadside DUI stop. Olevik recognized that Paragraph XVI protects a suspect from being compelled by the police to perform a chemical breath test that yielded a measurement of his blood alcohol content. See Olevik, 302 Ga. at 246 (2). Elliott determined that the suspect‘s refusal to perform the test could not be used against him. See 305 Ga. at 223 (IV). And Awad applied these same protections in the context of a urine test. See 313 Ga. at 106 (5).
Although we have never expressly overruled Keenan, it is clearly in tension with our holdings in Olevik, Elliott, and Awad, and we have already expressed doubts about Keenan‘s seeming equation of the rights protected by former
Like the Court of Appeals in Bradberry, we see little distinction between the preliminary alco-sensor breath test Ammons refused to take during her roadside stop and the type of chemical breath tests at issue in Olevik and Elliott (or, for that matter, the urine test in Awad). Both a preliminary alco-sensor test and a chemical breath test require the defendant to affirmatively blow into a device “for a sustained period of time.” Bradberry, 357 Ga. App. at 66 (3). And because the preliminary test detects the presence of alcohol, evidence generated by the test is plainly incriminating against a suspect who has consumed alcohol. See id. at 66 (3). See also Olevik, 302 Ga. at 231 (1) (b) (noting that a portable alco-sensor test detects the presence of alcohol). We thus see little merit in the State‘s efforts to distinguish that test from the ones considered in Olevik and Elliott.7
Under the doctrine of stare decisis, courts generally stand by their prior decisions, because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process. Stare decisis, however, is not an inexorable command. Courts, like individuals, but with more caution and deliberation, must sometimes reconsider what has been already carefully considered, and rectify their own mistakes. In reconsidering our prior decisions, we must balance the importance of having the question decided against the importance of having it decided right. To that end, we have developed a test that considers the age of precedent, the reliance interests at stake, the workability of the decision, and, most importantly, the soundness of its reasoning. The soundness of a precedent‘s reasoning is the most important factor. We have also said that stare decisis carries less weight when our prior precedent involved the interpretation of the Constitution, which is more difficult than statutory interpretation for the legislative process to correct. This doesn‘t mean that we disregard stare decisis altogether, though; what it actually means is that the first stare decisis factor (soundness of reasoning) becomes even more critical. The more wrong a prior precedent got the Constitution, the less room there is for the other factors to preserve it.
(Citations, punctuation, and emphasis omitted.) Olevik, 302 Ga. at 244-245 (2) (c) (iv).
As noted above, we see no plausible distinction between the breath test at issue in this case and those we considered in Olevik and Elliott, and we should not strain to find distinctions between Keenan and these more recent decisions where no meaningful ones exist. Moreover, the final sentence of the discussion in Keenan that dealt with refusal to consent to an alco-sensor test was the first, and only, mention of the Georgia Constitution in that opinion. The opinion never quoted or referred to any specific provision of the Georgia Constitution, nor did it purport to tie its ruling to the text or history of any Georgia constitutional provision. In short, to the extent the statement in Keenan regarding the Georgia Constitution was even a holding, this Court offered no reasoning to support it. See Turnquest, 305 Ga. at 771 (4) (rejecting stare decisis as basis for upholding earlier decision where the Court‘s “opinion did not cite, let alone analyze, any particular Georgia statute or Georgia constitutional provision in support of its holding“). Moreover, since that time, our Court has concluded “after extensive review of the historical record and our case law,” that Paragraph XVI prohibits the introduction of evidence of a defendant‘s refusal to consent to a breathalyzer test in conjunction with a DUI stop. Elliott, 305 Ga. at 180. Thus, in light of our understanding and detailed explanation of what Paragraph XVI protects, the lone reference in Keenan to the Georgia Constitution was unsound, “which is the most important stare decisis consideration, especially in constitutional cases.” Turnquest, 305 Ga. at 773 (4).
In addition, “[n]one of the remaining stare decisis factors indicate that we should retain this unfounded decision.” Id. at 744 (4). Keenan was decided 29 years ago, and we have overruled decisions older than that. See Southall v. State, 300 Ga. 462, 468 (1) (796 SE2d 261) (2017) (overruling a 45-year-old precedent on premature motions for new trial); State v. Hudson, 293 Ga. 656, 661-662 (748 SE2d 910) (2013) (overruling a 38-year-old precedent regarding when a new post-appeal sentence is unconstitutionally vindictive); State v. Jackson, 287 Ga. 646, 659-660 (5), (6) (697 SE2d 757) (2010) (overruling a nearly 29-year-old interpretation of the felony murder statute). Keenan also created none of the reliance
do not outweigh the countervailing interest that all individuals share in having their constitutional rights fully protected. If it is clear that a practice is unlawful, individuals’ interest in its discontinuance clearly outweighs any law enforcement entitlement to its persistence. The mere fact that law enforcement may be made more efficient can never by itself justify disregard of constitutional rights.
(Citation and punctuation omitted.) Olevik, 302 Ga. at 246 (2) (c) (iv). Finally, “[t]he remaining factor of workability is not reason enough to preserve” Keenan. Id. As we discussed in Olevik with regard to chemical breath tests,
law enforcement may have to consider whether a suspect has validly waived his right against self-incrimination under the totality of the circumstances. We recognize that requiring this determination before administering a [preliminary] breath test [using an alco-sensor] is more difficult than simply waiting for an affirmative response
to an officer‘s request to perform the test. Id. “But this difficulty is not reason enough to persist” in Keenan‘s error. Id.
Consequently, to the extent Keenan purported to issue a holding on the issues in that case pursuant to the Georgia Constitution, any such holding is overruled. And because the trial
court’s order denying Ammons’s motion to suppress relied in part on Keenan, we reverse that portion of the trial court’s ruling.8
(b) The protections of Paragraph XVI apply to field sobriety tests that require the suspect’s cooperation.
We also answer in the affirmative the second question posed in this appeal: that is, whether the
As with other tests performed by the police during DUI stops, a field sobriety test is designed to “reveal . . . some other condition or impairment” of the driver relevant to determining whether he or she was driving under the influence. Mitchell v. State, 301 Ga. 563, 570-571 (3) (802 SE2d 217) (2017), disapproved on other grounds by Turnquest, 305 Ga. at 775 (4) n.15. As we noted in Mitchell, “field sobriety tests may involve specific, unusual maneuvers that are . . . intended to reveal . . . [s]uch characteristics as unsteady gait, lack of balance and coordination, impaired speech, lack of memory, or inability to divide one’s attention . . . .” 301 Ga. at 571 (3). Although field sobriety tests are not a search within the meaning of the
the [walk and turn] and [one-leg stand] test and other dexterity test[s] that cause a DUI suspect to divide [her] attention among more than one task, also known as divided attention tests, enable an officer to better know whether that suspect is impaired by an intoxicant to the point of being a less safe driver. These divided attention tests are revealing as to impairment because a motor vehicle driver is required to divide his attention among several tasks at once while driving.
As the Court of Appeals has discussed at length, like the HGN test, both the walk and turn test and the one-leg stand test plainly require the suspect to cooperate by performing affirmative acts. See, e.g., Davis v. State, 358 Ga. App. 832, 835 (856 SE2d 411) (2021) (noting that, at the request of the officer, the suspect “performed” the walk and turn test and the one-leg stand); Leggett v. State, 354 Ga. App. 877, 878 (842 SE2d 313) (2020) (noting that the suspect “could not keep his balance” while performing the walk and turn test); State v. Culler, 351 Ga. App. 19, 21 (830 SE2d 434) (2019) (noting that the suspect “was able to stand straight, arms at his side, with one leg raised, and while counting out loud for approximately 23 seconds, during which time he exhibited no problems with his balance, coordination, or speech” and “ceased performing the test only when [the officer] directed him to do so”); Oh v. State, 345 Ga. App. 729, 730-731 (815 SE2d 95) (2018) (noting that the officer instructed the suspect to perform the walk and turn test by instructing him to “take nine steps with his arms to his side and then turn around” and that signs of impairment included taking an incorrect number of steps, failing to maintain balance, making an improper turn, and using arms to maintain balance). And such tests cannot be performed if the suspect is not in a condition to cooperate. See Olevik, 302 Ga. at 231(1) (b) (noting that the “walk-and-turn and one-leg-stand tests were not conducted because [the suspect] had certain physical limitations”); Adams v. State, 344 Ga. App. 159, 168 (4) (809 SE2d 87) (2017) (noting that the officer “chose not to perform the walk-and-turn and one-leg stand field sobriety tests because [the suspect] was too unsteady on his feet”); Miller v. State, 343 Ga. App. 197, 197 (806 SE2d 648) (2017) (noting that because the suspect informed the officer that “she had hip issues,” the officer “determined that [the suspect] could not be medically cleared to perform the one-leg-stand or walk-and-turn evaluations).
The State suggests that this information is merely useful to the officer in establishing probable cause for an arrest, but information that is useful for that purpose is also clearly useful to the State in proving at trial that the defendant violated the DUI statute.
Moreover, while the level of cooperation for each standard field sobriety test appears to be somewhat different from the chemical breath tests at issue in Olevik and Elliott and the urine test in Awad, it is clear that field sobriety tests that require the suspect to cooperate by performing some affirmative act are covered by the protections of Paragraph XVI. See Awad, 313 Ga. at 103 (3) (applying Paragraph XVI to state-administered urine tests and noting that such tests involved asking the defendant to perform a task which was “neither natural nor automatic”); Olevik, 302 Ga. at 243-244 (2) (c) (ii) (applying Paragraph XVI to breath tests because, among other reasons, “it is required that the defendant cooperate by performing an act”). Ammons had the right to refuse to engage in these tests, and, except with regard to the HGN test, she did refuse. Her refusal to perform the remaining field sobriety tests cannot be used against her at trial. See Awad, 313 Ga. at 106 (5); Elliott, 305 Ga. at 223 (IV); Olevik, 302 Ga. at 246 (2). Accordingly, we reverse that portion of the trial court’s order that reached a contrary result.
Both the State and the dissent argue that the entire basis of our holdings in Olevik, Elliott, and Awad was flawed and should be reconsidered in this case. But we see no reason to do so.
First, the dissent rejects long-standing interpretive principles and replaces them with a too-narrow focus on isolated words divorced from history and context. This novel approach would ignore all of our case law on constitutional interpretation before 1983 and begin anew with 1983 dictionary definitions. This simply is not how we have ever engaged in constitutional interpretation in Georgia. See, e.g., Elliott, 305 Ga. at 184-187 (II) (B) (detailing historic interpretive approach involving consideration of judicial construction of previous constitutions).
Second, no reasonable observer during the drafting and ratification of the
Third, for its principal case law support, the dissent relies almost exclusively on Drake v. State, 75 Ga. 413 (1885), and its purported conflict with Day v. State, 63 Ga. 667 (1879). In doing so, the dissent brushes past the fact that we rejected the dissent’s reading of Drake in 1889 and then again in 1916, and Drake has never again been cited for the dissent’s proposition. See Calhoun v. State, 144 Ga. 679, 680 (87 SE 893) (1916) (rejecting language on which the dissent relies as dicta and that “an examination of the facts of the case will show that the actual ruling was that the constitutional privilege does not prevent the introduction in evidence or the exhibition to the jury of clothing or any other article taken from a person accused of crime, where they tend to show his guilt”); Evans v. State, 106 Ga. 519, 521 (32 SE 659) (1899) (“[A]n examination of the facts appearing of record in [Drake] will show that it is really not in conflict with the Day case”).9
Finally, the remaining arguments that the dissent puts forth were all considered at length and unanimously rejected in Elliott (many of which had already been previously considered and unanimously rejected in Olevik). Because they are not based on any previously unaddressed theory and do not point to any previously unconsidered precedent, we see no reason whatsoever to reconsider them yet again, despite the State’s invitation to do so.
3. Ammons has not met her burden to establish that the implied-consent statutes violate Article I, Section I, Paragraph VII of the Georgia Constitution of 1983.
Finally, Ammons contends that, by allowing her refusal to consent to a blood test to be introduced as evidence at her trial, Georgia’s implied consent statutes,
We reject this claim. As an initial matter, Ammons’s burden to establish this claim is a difficult one. We presume that statutes are constitutional, and before an act of the General Assembly can be declared unconstitutional, “the conflict between it and the fundamental law must be clear and palpable and this Court must be clearly satisfied of its unconstitutionality.” (Citation omitted.) S&S Towing & Recovery, Ltd. v. Charnota, 309 Ga. 117, 118 (1) (844 SE2d 730) (2020). “Because all presumptions are in favor of the constitutionality of a statute, the burden is on the party claiming that the law is unconstitutional to prove it.” (Citation omitted.) Id. at 119 (1). And Ammons’s task is made all the more difficult because, to make
Ammons has not made even the prima facie showing that would meet her heavy burden. Construing a constitutional provision, especially as an original matter, requires careful attention to not only the language of the clause in question, but also its broader legal and historical context, which are the primary determinants of a text’s meaning. See, e.g., Olevik, 302 Ga. at 236 (2) (c) (i) (“We interpret a constitutional provision according to the original public meaning of its text,” for which we consider both the text’s “plain and ordinary meaning” and “the broader context in which that text was enacted” (citation and punctuation omitted)). This kind of analysis is especially difficult when the language in question was first enacted long ago and rarely interpreted since, because those important contextual clues can be more difficult to unearth, and the ordinary meaning of language can change over time. But Ammons’s showing with respect to the meaning of Paragraph VII grapples with none of this difficult analysis. Instead, she plucks isolated text from the constitutional provision, cites a single dictionary, and relies on general statements from a handful of our decisions that do not interpret the relevant constitutional language. This kind of analysis does not meet the burden required to establish that Paragraph VII has the expansive reach that Ammons would have us recognize.
Given Ammons’s failure to meet her burden here, we need not reach any definitive conclusions as to the scope of Paragraph VII. But we do think it is helpful to provide some explanation of why Ammons’s claim, as articulated here, fails from the start. A general review of the legal and historical context relevant to Paragraph VII helps illustrate the deficiency of Ammons’s theory and offers no meaningful support for her novel and expansive view of the
In considering the meaning of this clause, we begin by outlining some principles of constitutional interpretation. As a starting point,
we interpret the
Georgia Constitution according to its original public meaning. And, of course, theGeorgia Constitution that we interpret today is the Constitution of 1983 ; the original public meaning of that Constitution is the public meaning it had at the time of its ratification in 1982.
Elliott, 305 Ga. at 181 (II). However, where a provision of the current constitution has been carried forward from a previous constitution, “we generally presume that a constitutional provision retained from a previous constitution without material change has retained the original public meaning that provision had at the time it first entered a
Paragraph VII finds its roots in the period immediately after the Civil War. In 1868, to satisfy the conditions set by Congress for readmission to the Union, Georgia ratified a new constitution. See Macon & Augusta R. Co. v. Little, 45 Ga. 370, 374-375 (1872) (noting that formation of a new state constitution and approval of that constitution by Congress were conditions for Georgia’s reinstatement to the Union). As directed by Congress, that new constitution had to do two things: “conform[] with the
All persons born, or naturalized, in the United States, and resident in this State, are hereby declared citizens of this State, and no laws shall be made or enforced which shall abridge the privileges or immunities of citizens of the United States, or of this State, or deny any person within its jurisdiction the equal protection of its laws.
And it shall be the duty of the General Assembly, by appropriate legislation, to protect every person in the due enjoyment of the rights, privileges[,] and immunities guaranteed in this Section.
One piece of context important for understanding the meaning of this provision is
The United States Supreme Court has construed the collection of rights protected by the
constitutions, but also enhances or adds to those rights to some significant degree, is of a different character entirely and finds no support in either the Fourteenth Amendment‘s Privileges or Immunities Clause or in the debate surrounding its crafting.
Nor does Ammons‘s novel construction find support in this Court‘s own contemporaneous construction of the 1868 Constitution‘s predecessor to Paragraph VII. In White v. Clements, 39 Ga. 232 (1869), right after the 1868 provision was adopted, this Court was asked to determine whether a man who had won an election for public office was ineligible to serve because he was one-eighth black. Id. at 240. This Court held that the man was eligible because the predecessor to Paragraph VII made it clear he was a citizen of Georgia. Id. at 263-264.16 Pertinent here, we explained that adopting the predecessor to Paragraph VII meant that the formerly enslaved “are citizens, and ‘citizens’ of this State. . . . This section of the Constitution of 1868, takes another step — they become citizens — they grant to themselves the character of citizens.” (Emphasis in original.) Id. at 259. See also id. at 273 (Brown, C.J., concurring) (“Whatever may or may not be the privileges and immunities guaranteed to the colored race, by the Constitution of the . . . United States and of this State, it cannot be questioned that both Constitutions make them citizens” (emphasis omitted)). As an early construction of the predecessor to Paragraph VII, White is a good indication of the Clause‘s original public meaning, and it does not support Ammons‘s reading.
From the context set out above, we can surmise that the predecessor to Paragraph VII was understood as having an important role in guaranteeing that those who had been recently freed from slavery were citizens of Georgia and entitled to the same rights as other citizens. Even so, much like the scope of the “privileges or immunities” protected by the Fourteenth Amendment is subject to debate, the scope of the “rights, privileges, and immunities” protected by Paragraph VII is not entirely clear. But nothing that we have seen so far suggests that Paragraph VII does more than guarantee existing, enumerated rights to all citizens of the United States who reside in Georgia. We do not rule out the possibility that Paragraph VII does something more than that, but Ammons has not made that showing here. Her claim that Paragraph VII requires the suppression of evidence of a refusal to consent to a warrantless search therefore fails.17
Judgment affirmed in part and reversed in part. All the Justices concur, except McMillian and Colvin, JJ., who concur in part and dissent in part.
ELLINGTON, Justice, concurring.
I join fully in the majority opinion and write separately only to emphasize the limitations of our holding in Division 3. As the majority notes, although Ammons has not marshalled authorities sufficient to persuade us that Paragraph VII does more than guarantee existing, enumerated, rights to all citizens of the United States who reside in
Our jurisprudence on the meaning of the unique clause in Paragraph VII – “and it shall be the duty of the General Assembly to enact such laws as will protect them in the full enjoyment of the rights, privileges, and immunities due to such [Georgia] citizenship” – is scant. But the people of Georgia saw fit to include this clause in our constitution, so we cannot brush it aside. And we have in broad terms recognized Paragraph VII as the source of “the General Assembly‘s affirmative constitutional duty” to protect “the right of the people to exercise their civil rights[.]” State v. Miller, 260 Ga. 669, 672 (1) (398 SE2d 547) (1990). Future cases may present the opportunity to develop a deeper understanding of the meaning of “the full enjoyment of the rights, privileges, and immunities” that citizens enjoy, as well as a better understanding of the affirmative duty imposed on the General Assembly to protect that enjoyment. In the present case, however, Ammons has not met her heavy burden of overcoming the presumption that the statutory evidentiary rule regarding blood test refusals in DUI cases is constitutional, so we must reject her Paragraph VII challenge to
PINSON, Justice, concurring.
I concur in the majority opinion, including its faithful application of this Court‘s recent decisions in Olevik v. State, 302 Ga. 228 (806 SE2d 505) (2017), Elliott v. State, 305 Ga. 179 (824 SE2d 265) (2019), and Awad v. State, 313 Ga. 99 (868 SE2d 219) (2022). Perhaps there is room for debate about whether Olevik and Elliott were correct that the right against compelled self-incrimination under the Georgia Constitution protects affirmative acts. But those decisions plainly control here, and I am quite certain that stare decisis requires us to follow them. I write separately to explain why.
1. When courts consider whether to adhere to past decisions, stare decisis is the strong default rule. Some of the reasons for this rule are practical: applying stare decisis makes a body of law more stable, predictable, and reliable, and it deters the inefficient and expensive “endless relitigation” of basic and settled legal rules. Kimble v. Marvel Entm‘t, LLC, 576 U.S. 446, 455 (135 SCt 2401, 192 LEd2d 463) (2015). See also Cobb v. State, 187 Ga. 448, 452 (200 SE 796) (1939) (“The application of the doctrine of stare decisis is essential to the performance of a well-ordered system of jurisprudence.“). But in my view, stare decisis is rooted most securely in the rule of law. See State v. Jackson, 287 Ga. 646, 658 (5) (697 SE2d 757) (2010). In our constitutional structure, courts have the special duty to say what the law is (as needed to resolve the controversies that come before us). Once we have decided a disputed issue of law, following that decision in future cases — treating like cases alike — promotes a system of equal treatment under the law rather than one built on “arbitrary discretion.” The Federalist No. 78, at 529 (Alexander Hamilton) (Jacob E. Cooke ed., 1961). And at a more fundamental level, following a past decision confirms that it is law, and that even the Court, like any other government actor and the litigants before us, is bound by it. This is the essence of the rule of law, and each time we overrule a past decision — choosing not to follow what our Court has said the law is — we risk chipping away at its foundation.
Of course, sometimes that‘s a risk we must take. Even knowing the potential cost to the rule of law, courts in every jurisdiction across our country, including this Court, have overruled plenty of past decisions. That‘s because the rule of law can also be undermined by perpetuating decisions that are obviously and harmfully wrong. When sticking to such decisions would cause more damage to the rule of law than correcting course, courts may choose overruling as the lesser evil. See, e.g., Ellison v. Georgia R.R. & Banking Co., 87 Ga. 691, 696 (13 SE 809) (1891) (Bleckley, C.J.) (when encountering “a great and glaring error affecting the current administration of justice,” the “maxim for a supreme court . . . is not stare decisis, but fiat justitia ruat coelum [let justice be done, though the heavens fall]“).
It is not always easy to figure out when a past error is damaging enough to the rule of law that overruling the decision is worth the cost. Compare Cook v. State, 313 Ga. 471, 484-506 (870 SE2d 758) (2022) with id. at 508-20 (Peterson, J., dissenting).
The first kind of decision — call it the “deliberate” kind — ordinarily poses little threat to the rule of law, even when it is arguably wrong in hindsight. Any number of disputed legal questions are subject to reasonable debate. When one of those questions is presented to a court, the court‘s constitutional role is to resolve it. If a court reaches that resolution through a decision that carefully applies sound, generally accepted legal principles,18 it is clear evidence of a proper exercise of the judicial power — that is, that the court is simply doing the job our Constitution gives it.19 See Judicial Counsel of Ga. v. Brown & Gallo, LLC, 288 Ga. 294, 297 (702 SE2d 894) (2010) (“The judicial power is that which declares what law is, and applies it to past transactions and existing cases; it expounds and judicially administers the law.” (quoting Thompson v. Talmadge, 201 Ga. 867, 874 (1) (41 SE2d 883) (1947) (cleaned up))). Thus, recognizing such a decision as law and following it, even in the face of doubt about whether it was correct as an original matter, is consistent with the rule of law. See Patterson v. State, 299 Ga. 491, 516 (789 SE2d 175) (2016) (Blackwell, J., dissenting) (arguing
that when we “get it wrong” on a question about the meaning of a statute, “it may be more appropriately left to the General Assembly to set things right” so long as “we have made our best effort” to apply “familiar and settled principles of statutory interpretation“). In my view, if nothing has changed besides the makeup of the court, overruling those kinds of decisions merely because the new personnel would come out on the other side of a reasonable debate ordinarily would do greater harm to the rule of law than leaving them settled.
The calculus is different for past decisions of the “hasty and crude” variety. If a past decision ignores or flatly disregards sound, generally accepted legal principles, or relies only on bald, unreasoned assertions, or some combination of the above, the inference that such decisions are proper exercises of the judicial power grounded in law is much weaker.20 Following those decisions when they are probably wrong poses risks of undermining the rule of law similar to the risk posed by overruling — that is, it suggests that courts are relying on arbitrary discretion or personal preferences rather than following the law
This distinction just discussed may not be the only thing that matters to the question whether to overrule a past decision, but in my view, it serves a kind of gatekeeping function in any stare decisis analysis. If the past decision in question is unreasoned, or if it disregards the basic legal principles that courts use to do law, the argument for overruling is easier to make. See, e.g., Crayton v. State, 298 Ga. 792, 803 (784 SE2d 343) (2016) (Blackwell, J., dissenting) (disapproving of a holding reached “without any discussion or analysis whatsoever” and explaining that “[w]e ought not follow unreasoned precedent without reason“). If a past decision is “not law,” Doe, 23 Ga. at 86, treat it accordingly. On the other hand, if the past decision in question is the product of the careful and deliberate application of sound and accepted legal principles, it seems to me that the burden on any would-be overrulers is to show something pretty extraordinary to justify the serious harm to the rule of law that comes from overruling that kind of decision.
2. That brings us to this case. The majority holds that a person‘s right against compelled self-incrimination under the Georgia Constitution,
There is perhaps room for debate about whether these past decisions are correct as an original matter. (This is apparent from the existence of a dissent in this case that engages in that debate.) But there can be no serious dispute that these decisions — and here I focus on Olevik and Elliott — are very much the “deliberate” kind I‘ve just described. In Olevik, a unanimous Court considered and explained in detail the set of objective and well-established legal principles that formed the framework for analyzing the question whether Paragraph XVI applied to a chemical breath test. See Olevik, 302 Ga. at 235-39 (2) (c) (i). The Court then carefully applied those principles and, after canvassing more than 100 years of decisional law and constitutional language to do so, concluded that Paragraph XVI prevents the State from forcing people to take affirmative acts that inherently generate incriminating evidence. Id. at 239-41 (2) (c) (ii). Two years later, in Elliott, a unanimous Court did all of that again in an even more expansive analysis after the State asked the Court to overrule Olevik, and then reaffirmed its holding in Olevik. Elliott, 305 Ga. at 181-209 (II-III). The Court then addressed, in similarly exhaustive fashion, the separate question whether Paragraph XVI prevents the government from using a person‘s refusal to perform protected affirmative acts against her at trial to suggest an adverse inference of guilt, and concluded that it did. Id. at 209-21 (IV) (A-D). Whatever one‘s views about how to answer the questions these two decisions addressed as an original matter, it is not possible to read them and come away
Given the deliberate nature of these decisions, anyone who seeks to overrule them has to marshal much more than mere disagreement with their outcome — to me, they need to show in some way that following them would cause even more serious damage to the rule of law than overruling them would. The dissent has not nearly made that case. Although the dissent applies the familiar four-factor analysis for assessing whether to apply stare decisis,21 its arguments reduce to mere disagreements with how those decisions should have applied the relevant legal principles, hypotheticals that might pose close questions in the future, a couple of past cases that are arguably inconsistent with Olevik and Elliott, and the policy concern that the General Assembly has been “stripped . . . of its authority to protect the public from dangerous drivers.”22 This would be a perfectly fine dissent from Olevik. But it does not come close to justifying the harm to the rule of law of overruling that unanimous, carefully reasoned decision just five years later, especially when a unanimous court has since reaffirmed it, and nothing material to the legal question has changed — only the Court‘s personnel.
For my part, I am satisfied that stare decisis applies to Olevik and Elliott. I have a lingering question or two about certain aspects of the reasoning of those decisions, but their holdings are plainly grounded in careful — indeed, exhaustive — application of sound and generally accepted legal principles, and I see nothing in the arguments of the dissent or the parties that suggests following those decisions has caused or is likely to cause any substantial harm to the rule of law.23 For
COLVIN, Justice, concurring in part and dissenting in part.
Article I, Section I, Paragraph XVI of the Georgia Constitution of 1983 (“Paragraph XVI“) provides that “[n]o person shall be compelled to give testimony tending in any manner to be self-incriminating.”
submitting to, or refusing to submit to, a chemical or field sobriety test does not require a defendant “to give testimony,” I do not believe that Paragraph XVI prohibits the State from admitting into evidence the results of, or refusal to submit to, a state-administered chemical or field sobriety test. Accordingly, while I concur with Divisions 1 and 3 of the majority opinion, I dissent with respect to Division 2.
In explaining the interpretive principles relevant to construing this State‘s Constitution, we have emphasized the need to ascertain the “original public meaning” of a constitutional provision, that is, “the meaning the people understood a provision to have at the time they enacted it.” Olevik v. State, 302 Ga. 228, 235 (2) (c) (i) (806 SE2d 505) (2017). As we have explained, this task requires an objective inquiry that “consider[s] the plain and ordinary meaning of the text, viewing it in the context in which it appears and reading the text in its most natural and reasonable manner.” Id. at 236-237 (2) (c) (i). Yet, for most of our history, we have given little consideration to the plain and ordinary meaning of the text when construing the constitutional right against self-incrimination. Indeed, in our recent precedent, we have relegated to a footnote Drake v. State, 75 Ga. 413 (1885), the first case in which we expressly construed the text of the self-incrimination provision, and dismissed as irrelevant the question of whether we got it right when we offered a contrary construction in other decisions following the 1877 Constitution‘s ratification. See Elliott v. State, 305 Ga. 179, 203 n.16 (III) (C) (i) (824 SE2d 265) (2019) (disregarding Drake); see id. at 209 (III) (C) (ii) (“[W]e do not determine conclusively that [Day v. State, 63 Ga. 667 (1879)] was correctly decided[.]“). See also Olevik, 302 Ga. at 241 (2) (c) (ii) (assuming arguendo that our early precedent misread the constitutional text).
If we give any weight at all to the specific language used in the Constitution, it becomes impossible to conclude that the constitutional right against self-incrimination extends to all incriminating acts. The right against self-incrimination first appeared in Georgia‘s 1877 Constitution. At the time, the provision read: “No person shall be compelled to give testimony tending in any manner to criminate himself.”
The meaning of “to give testimony” has not significantly changed since the phrase first appeared in our 1877 Constitution. See Olevik, 302 Ga. at 239 n.6 (2) (c) (ii) (“There is no indication that ‘testimony’ had a substantially broader definition in 1877.“). At the time, Noah Webster defined “testimony” as “[a] solemn declaration made to establish some fact,” as exemplified by “the evidence of a witness given under oath.” Noah Webster, A Dictionary of the English Language 434 (1878). John Guerard invoked this ordinary sense of the word when, at the 1877 constitutional convention, he introduced the text of the constitutional right against compelled self-incrimination and explained why it was a necessary addition. Absent this constitutional guarantee, Guerard explained, “a man may be subjected to an inquisition, and made to testify against himself.” Samuel W. Small, A Stenographic Report of the Proceedings of the Constitutional Convention Held in Atlanta, Georgia, 1877 94 (Constitution Publishing Company 1877) (emphasis supplied); see Noah Webster, A Dictionary of the English Language 226 (1878) (defining “inquisition” as (1) “[i]nquiry; investigation,” (2) “[j]udicial inquiry,” or (3) “[a] tribunal for examining and punishing heretics“). See also Olevik, 302 Ga. at 238 (2) (c) (i) (“[C]onsidering what the framers of our Constitution understood the words they selected to mean can be a useful data point in determining what the words meant to the public at large.“). I am aware of no evidence suggesting that the public in 1877 would have understood the term “testimony,” as used in the constitutional self-incrimination provision, to have some technical or particular idiosyncratic meaning not captured in dictionaries of the time. See Olevik, 302 Ga. at 239 n.6 (2) (c) (ii) (relying on the 1878 Noah Webster dictionary definition for the original public meaning of the word “testimony“).24
This Court has often referred to Day v. State, 63 Ga. 667 (1879) as the seminal case construing the constitutional right against self-incrimination. See, e.g., Olevik, 302 Ga. at 239 (2) (c) (ii). Day, however, merely suggested that the constitutional right and an associated common-law right provided related protections:
By the constitution of this state “no person shall be compelled to give testimony tending in any manner to criminate himself.” Nor can one, by force, compel another, against his consent, to put his foot in a shoe-track for the purpose of using it as evidence against him on the criminal side of the court, the more especially when the person using such force has no lawful warrant or authority for doing so.
Day, 63 Ga. at 669 (emphasis supplied). Neither this statement nor Day‘s headnote, which stated that “[a] defendant cannot be compelled to criminate himself by acts or words,” purported to construe the constitutional provision. Id. at 667 (2). Moreover, Day‘s holding appears to rely in part on the requirement that the State obtain a “lawful warrant” before obtaining evidence from a defendant against his will—a requirement that has no basis in the constitutional self-incrimination provision. Day, 63 Ga. at 669.
Given that “to give testimony” had a clear meaning in 1877, it is unsurprising that, when first called upon to construe the constitutional text in Drake, we concluded that the self-incrimination provision meant exactly what it said. The constitutional provision declaring that “no person shall be compelled to
While there may be factual circumstances in which reasonable minds might differ as to whether the evidence at issue constitutes “testimony,” the text of the constitutional provision is not consistent with an interpretation that the constitutional right protects against any and all compelled self-incriminating “acts.” In concluding otherwise, this Court has expressly disregarded the specific language of the self-incrimination provision, relying instead on two non-textual inferences: first, because the constitutional right against self-incrimination derived from the common-law right against self-incrimination, the constitutional right is identical to the common-law right; and second, even if our early precedent badly misinterpreted the constitutional provision, our incorrect construction became the “original public meaning” of the provision when it was carried forward into a later constitution without material change. In my view, neither of these inferences is sound.
Calhoun v. State was the first decision of this Court to conflate the constitutional and common-law rights based on faulty logic. In Calhoun, we explained that the common-law privilege had “derived” from, and had been “uniformly construed” as coextensive with, the common-law maxim “that no man is bound to accuse himself of any crime or to furnish any evidence to convict himself of any crime.” 144 Ga. 679, 680 (87 SE 893) (1916). We further explained that this maxim was the “prototype” of “the constitutional mandate that ‘[n]o person shall be compelled to give testimony tending in any manner to criminate himself.‘” Id. Then, based on the historical fact that the common-law right was a precursor of the constitutional right, we leapt to the conclusion that:
The constitutional guaranty protects one from being compelled to furnish evidence against himself, either in the form of oral confessions or incriminating admissions of an involuntary character, or of doing an act against his will which is incriminating in its nature.
Id. at 680-681 (citing Day v. State, 63 Ga. 667 (1879)). In other words, Calhoun concluded that the constitutional right was “as broad as that afforded by the common-law principle from which it is derived” simply because the two rights were historically associated. Id. at 680. This does not follow. Calhoun did not analyze the constitutional language to determine whether the text could be fairly interpreted as encompassing the full scope of the common-law right not to be compelled to furnish evidence against oneself. Nor did it attempt to explain why Drake had erred in construing the constitutional text as limited to compelled self-incriminating testimony.27
common law broadly recognized a right not to be compelled to furnish evidence against oneself by words or acts. See Marshall v. Riley, 7 Ga. 367, 370-371 (1849) (describing “[t]he maxim of the Common Law . . . that no man is bound to accuse himself of any crime, or to furnish any evidence to convict himself of any crime” (emphasis in original)). But Georgia‘s Constitution refers to the right against being compelled “to give testimony,” not the right against being compelled “to furnish evidence.” Concluding that the specific language incorporated into this State‘s Constitution has no impact on the scope of the resulting constitutional right conflicts with fundamental principles of constitutional interpretation. Where, as here, the language of the constitutional text differs from the more expansive language used at common law, we should not equate the common-law right with the right protected by our Constitution.28
As an alternative basis for construing the constitutional right against self-incrimination without regard to the Constitution‘s text, this Court has relied on a version of the “prior-construction canon,” which generally provides that, “[i]f a statute uses words or phrases that have already received authoritative construction by the jurisdiction‘s court of last resort, . . . they are to be understood according to that construction.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 322 (2012) (hereinafter “Reading Law“). Adapting that principle for purposes of constitutional interpretation, we have explained that there is a presumption that, when a constitutional provision is incorporated into a new or amended constitution without material change, a “consistent and definitive construction” of the constitutional provision—even if flat out wrong—is carried forward as the meaning of the new or amended constitution. See Elliott, 305 Ga. at 184 (II) (B) (“Given th[e] consistent and definitive construction [of the constitutional self-incrimination provision, Olevik] presumed that construction was carried forward into the 1983 Constitution.“). See also Olevik, 302 Ga. at 241 (2) (c) (ii) (“[E]ven if we were wrong in Day and Calhoun . . . the subsequent ratifications
We first applied a version of this presumption to the self-incrimination provision in Aldrich v. State, 220 Ga. 132 (137 SE2d 463) (1964). There, we remarked that, “[f]ortunately” for us, we did not have to wrestle with the constitutional text to determine “whether or not ‘testimony’ as found in the Constitution embraces all kinds of evidence.” Id. at 134. Making no mention of Drake‘s holding that “testimony” meant “testimony,” we noted that “this court has many times decided that question by holding that the word ‘testimony’ means all types of evidence.” Id. at 134. Then, we simply applied a presumption “that the framers of [a] Constitution intend[] for [an identical constitutional provision carried forward into a new constitution] to have the meaning theretofore given it by construction.” Id. at 135. With that, Calhoun‘s expansive construction of the constitutional right against self-incrimination was incorporated into the 1945 Constitution as the self-incrimination provision‘s definitive interpretation.29 Later, in Olevik, we followed similar logic, presuming that Calhoun‘s interpretation of the constitutional right against compelled self-incrimination was carried forward as the meaning of the 1983 Constitution‘s self-incrimination provision. See Olevik, 302 Ga. at 241 (2) (c) (ii).
To be sure, applying such a presumption has some pragmatic benefits, making our jobs easier and maintaining consistency in our rulings. See Elliott, 305 Ga. at 186 (II) (B) (“The presumption created by a consistent and definitive construction reflects the value of consistency in the interpretation of legal language.” (punctuation omitted)). But even those who advocate for the presumption as an interpretive tool admit that it comes at the potential “cost” of permanently enshrining into law a high court‘s prior incorrect construction, and that such a consequence should be “avoided when the application of other sound rules of interpretation overcomes this canon.” Reading Law at 324.30
As relevant here, the key phrase in Paragraph XVI is “to give testimony,” and nothing about the textual context in which that phrase appears—“[n]o person shall be compelled to give testimony tending in any manner to be self-incriminating“—suggests that the right protected by Paragraph XVI applies to something other than “testimony.” Further, the word “testimony” has a commonly understood meaning that has changed remarkably little since it first appeared in the Georgia Constitution, and no one contends that the Georgians who ratified Paragraph XVI of the 1983 Constitution would have understood the term to carry some technical or archaic sense. See id. at 69 (“Interpreters should not be required to divine arcane nuances or to discover hidden meanings.“). Finally, Paragraph XVI‘s use of the phrase “to give testimony“—to the exclusion of other, broader phrases frequently used in connection with the common-law right against self-incrimination—gives rise to a negative implication that the scope of Paragraph XVI‘s protections is narrower than the protections afforded by the common law. In sum, even assuming that the prior-construction canon should be afforded some weight in interpreting the Paragraph XVI, other sound principles of interpretation overwhelmingly favor an interpretation of Paragraph XVI that affords protection only to compelled self-incriminating “testimony.” An interpretation that extends the scope of Paragraph XVI to all compelled self-incriminating “acts” is simply incompatible with the constitutional text.
As this Court has recognized, stare decisis is neither “a straightjacket,” State v. Jackson, 287 Ga. 646, 647 (697 SE2d 757) (2010), nor “an inexorable command,” Cook v. State, 313 Ga. 471, 485 (3) (a) (870 SE2d 758) (2022) (citation and punctuation omitted). In determining whether to overrule a prior erroneous ruling, we have considered a variety of factors, including “the age of precedent, the reliance interests at stake, the workability of the decision, and, most importantly, the soundness of its reasoning.” Gilliam v. State, 312 Ga. 60, 62 (860 SE2d 543) (2021) (citation and punctuation omitted). Further, “it is well settled that stare decisis applies with the least force to constitutional precedents” because “it is much harder for the democratic process to correct or alter our interpretation of the Constitution than our interpretation of a statute or regulation.” Id. (citations and punctuation omitted). As a result, “[t]he more wrong a prior precedent got the Constitution, the less room there is for the other factors to preserve it.” Id. at 62-63 (citation and punctuation omitted).
Here, age is the only stare decisis factor that weighs in favor of retaining our precedent holding that the constitutional right against compelled self-incrimination applies not only to “testimony” but also to “acts.” Whether one measures from Calhoun or Day, our erroneous precedent stretches back more than 100 years. That is undeniably old precedent. But it is not ancient, and this Court is no stranger to overruling old precedent that is demonstrably wrong. See, e.g., Frett v. State Farm Employee Workers’ Comp., 309 Ga. 44, 60 (3) (c) (844 SE2d 749) (2020) (overruling 85-year-old statutory precedent to which stare decisis applied with more force).32
The remaining stare decisis factors all weigh in favor of overruling our self-incrimination precedent. Our erroneous decisions “created no reliance interest of the sort normally given weight in stare decisis analysis.” Gilliam, 312 Ga. at 63; see Olevik, 302 Ga. at 245 (2) (c) (iv) (“Substantial reliance interests are an important consideration for precedents involving contract and property rights, where parties may have acted in conformance with
existing legal rules in order to conduct transactions.” (citation and punctuation omitted)). Further, while overruling our self-incrimination precedent might negatively impact some people with pending criminal charges against them, most of those impacts would not implicate reliance interests: those who were compelled to perform a self-incriminating act obviously did not rely on our holdings that they could not be compelled to perform such acts; and there are presumably few, if any, people currently facing criminal charges who refused to perform a self-incriminating act because our holdings led them to believe that their refusal could not be admitted in evidence against them.
The workability factor also weighs in favor of overruling our erroneous self-incrimination precedent. Our decisions in this area demonstrate that we have failed to formulate a non-arbitrary standard for when a defendant was compelled to engage in a self-incriminating act. Examples abound. We have characterized Day as exemplifying an affirmative act because the defendant “was compelled to place his foot in certain footprints located near the crime scene.” Olevik, 302 Ga. at 241 (2) (c) (iii). Yet, placing his foot in the footprint could not have required any more than a de minimis act on the part of the defendant, given that an agent of the State “took hold of his foot and put it in the track.” Day, 63 Ga. at 669. At most, what was required of the defendant in Day was that he maintain his balance while the State “forcibly” moved his body. Id. at 667 (2).
We have also said that requiring a defendant to “stand up at trial” so a witness could look at his amputated leg requires an affirmative act, Olevik, 302 Ga. at 241 (2) (c) (iii) (citing Blackwell v. State, 67 Ga. 76, 78-79 (1881)), but that requiring a defendant to “strip to the waist” so police could photograph his tattoos did not require an affirmative act, id. at 242 (2) (c) (iii) (citing Ingram v. State, 253 Ga. 622, 634 (7) (323 SE2d 801) (1984)). This makes little sense, given that the act of stripping is more involved than the act of standing, and in both cases the evidence obtained was merely a visual inspection of the defendant, rather than something the State or the defendant removed from the defendant‘s body.
In addition, we have described taking dental impressions as a method of evidence collection that only requires a defendant “to be present” so evidence can be “taken from [his] body.” Id. at 242 (2) (c) (iii) (citing State v. Thornton, 253 Ga. 524, 525 (2) (322 SE2d 711) (1984)). What this ignores, however, is that taking dental impressions requires significant cooperation on the part of a defendant, who could easily prevent the State from obtaining a usable impression by refusing to open his mouth or moving his jaw during the procedure.
Further, we have held that a defendant performs an “act” under
Lurking in the record here is yet another self-incrimination issue that will require this Court to engage in arbitrary line drawing. Specifically, during the traffic stop here, State Trooper Levi Perry required Mia Ammons to produce her driver‘s license, which revealed that she had not timely updated her address information after moving. As a result, Ammons was charged with violating
But if that is the case, another rift in our case law will develop, as we have said that a person engages in an affirmative act when, at the direction of a law enforcement officer, he reaches into his pocket to produce a pistol. See Elliott, 305 Ga. at 203 (III) (C) (i) (citing Evans, 106 Ga. at 521).
As these examples demonstrate, the rule established by our precedent—that a defendant‘s
The final stare decisis factor—the soundness of our precedent‘s reasoning—strongly favors overruling this Court‘s erroneous interpretations of
Charitably reading our recent precedent, we have implicitly admitted that Calhoun‘s construction of the self-incrimination provision was incorrect. See Olevik, 302 Ga. at 235 (2) (c) (noting that we might interpret the constitutional provision differently “[i]f we were construing
As illustrated by this Court‘s recent opinions in DUI cases, our misinterpretation of the constitutional right against self-incrimination is not without consequence. The General Assembly may derogate common-law rights by statute, see Holland v. Caviness, 292 Ga. 332, 337 (737 SE2d 669) (2013), which is just what it attempted to do in the DUI context by requiring drivers to submit to chemical tests or face legal consequences for refusing to do so. See, e.g.,
Accordingly, I would overrule this Court‘s precedent in which we have held that
I am authorized to state that Justice McMillian joins this opinion concurring in part and dissenting in part.