BOHANNON v. THE STATE.
No. S97A2082.
Supreme Court of Georgia.
February 23, 1998.
269 Ga. 130 | 497 SE2d 552
entitled to immunity by virtue of the lack of notice. Judgment affirmed. All the Justices concur.
DECIDED FEBRUARY 23, 1998.
Wall & Noonan, William A. Wall, Douglas T. Noonan, Robert E. Bourne, for appellants.
Troutman Sanders, Robert L. Pennington, Hamilton, Westby, Marshall & Antonowich, Steven A. Westby, Parkerson, Shelfer & Groff, I. J. Parkerson, McClain & Merritt, William A. Sutton, Foster & Foster, Donald R. Foster, Hopkins & Gresham, H. Lowell Hopkins, Magill & Bondurant, David M. Atkinson, for appellees.
Davis, Gregory, Christy & Forehand, Hardy Gregory, Jr., Hyatt & Hyatt, John M. Hyatt, amici curiae.
We granted the application for interlocutory appeal filed by the appellant, Ryan Bohannon, to consider his due process challenges to
1. Before addressing the constitutional questions raised by this appeal, it is important to examine what conduct
This subsection provides that it is a crime to have a blood-alcohol concentration of .10 or greater, as measured within three hours of driving, if the blood-alcohol level results from alcohol consumed either before or while driving. This provision was added to
[t]he legislature, in enacting subsection (a) (4), is not declaring that everyone who has a blood-alcohol count of .12% or higher will be impaired in his driving, or that everyone with a lower percentage can drive safely. The statute represents the judgment that the public interest will be best served if no one with such a high blood-alcohol count drives.6
2. We now turn to Bohannon‘s contention that
“‘[A] solemn act of the legislature is presumed to be constitutional. [Cit.]’ [Cit.] Only when a statute manifestly infringes upon a constitutional provision or violates the rights of the people should the judicial branch impede its operation.”7 Moreover, under its police power, the state can enact laws that promote public health, safety, and welfare,8 and “[s]uch laws will not be held invalid if there is any basis upon which the law is aimed at a legitimate state interest.”9 Finally, in Lattarulo v. State, 261 Ga. 124 (401 SE2d 516) (1991), this Court held that determining the blood-alcohol levels at which people should not drive “is within the legislature‘s authority under the Twenty-First Amendment and the police power and is the type of determination that is particularly well-suited to the legislative process.”11
In enacting
Moreover, Bohannon‘s contention that subsection (a) (5) is not reasonably related to a legitimate state interest appears to rest on the false premise that the General Assembly only has an interest in legislating in the area of drinking and driving if it makes driving while actually impaired an element of the offense. We ruled against such a notion in Lester when we stated that driving while actually impaired was not an element of the offense under former subsection (a) (4), and that “[t]he statute represents the judgment that the public interest will be best served if no one with such a high blood-alcohol count drives.”13
Finally, courts around the country have made well-reasoned decisions that statutes virtually identical to
court concluded that the statute in question was reasonably related to public safety. In doing so, the court rejected Skinner‘s contention that the statute in question exceeded the police powers because it “could support a criminal conviction of persons who were not ‘intoxicated’ at the
To argue that the rule is unconstitutional for effectively making “legal” behavior illegal is implicitly to argue that driving with a 0.10 percent BAC or higher is the only DUI-related behavior that the State can prohibit legitimately. In other words, Appellants’ argument rests on the false premise that only driving with a BAC of 0.10 percent or higher threatens the public safety. To the contrary, the legislature has decided that driving after having consumed enough alcohol to cause one‘s BAC to rise to 0.10 percent within two hours after driving is dangerous to the public. . . . The 0.10 percent BAC is not some magical bright line between safely drunk and unsafely drunk, and the fact that driving with less than a 0.10 percent BAC may prove to be criminal under the two-hour rule does not mean that the rule is arbitrary or not substantially related to public safety.16
Similarly, the Supreme Court of North Carolina has declared that North Carolina‘s counterpart to our subsection (a) (5) is well within the police powers. “A person whose blood-alcohol concentration, as a result of alcohol consumed before or during driving, was at some time after driving 0.10 or greater must have had some amount of alcohol in his system at the time he drove. The legislature has decreed that this amount, whatever it might have been, is enough to constitute an offense. This it may constitutionally do.”17
For the foregoing reasons, we hold subsection (a) (5) is reasonably related to a legitimate state interest.
3. Bohannon also contends that
In Lester v. State, 253 Ga. 235, 236-237 (1984), this Court addressed whether former subsec-
tion (a) (4) was unconstitutionally vague. Our analysis in that case is instructive in this one. We noted that “[m]any statutes will have some inherent vagueness for ‘in most English words and phrases there lurk uncertainties,‘” 20 and that “[a]ll the Due Process Clause requires is that the law give sufficient warning that men may conduct themselves so as to avoid that which is forbidden.”21 As explained in Division 1 of this opinion, former subsection (a) (4) made it illegal to drive while having a blood-alcohol level of .10 or greater. Lester contended that the statute was vague because the average person could not detect when he would reach the proscribed blood-alcohol level at the time of driving, and in fact, could not know that his conduct was in violation of the statute until he had been arrested and given a chemical test.22 We held as follows:
Where the statute informs the public that a person who has consumed a large amount of alcohol chooses to drive at his own risk, we find that the statute is sufficiently definite in informing the public so that it might avoid the proscribed conduct.23
We conclude that the same analysis holds true for current subsection (a) (5). The only difference between the two statutes is that under former (a) (4), a person had to gauge when he had consumed a sufficiently large quantity of alcohol so that when he drove he
For his contention that subsection (a) (5) is void for vagueness, Bohannon relies on the decision in Commonwealth v. Barud, 681 A.2d 162 (Pa. 1996), in which the Pennsylvania Supreme Court reached the conclusion urged by Bohannon in the present case. In addition to finding the Barud decision unpersuasive for the reasons set forth above, we note
that other courts have concluded that statutes such as subsection (a) (5) sufficiently apprise people of the prohibited conduct.26 In Skinner, for example, the defendant conceded that a statute which required a person to assess his alcohol level at the time of driving would not be void for vagueness, but contended that the statute at issue, which prohibited a blood-alcohol level of .10 or higher within two hours of driving, was void for vagueness because, according to Skinner, a person could not assess, with any accuracy, whether his alcohol consumption would reach the prohibited level within two hours of driving.27 The district court rejected this contention:
While it certainly must be hard to predict if one‘s BAC has reached or will reach 0.10 percent within any time frame, this does not mean that the two-hour rule provides no notice of the prohibited conduct. To the contrary, the two-hour rule, just as the former time-of-driving rule, gives fair notice that, although driving after drinking is not illegal per se, driving becomes illegal after a certain level of consumption; the fact that people cannot sense exactly what their BAC is at any given moment or will be in two hours does not change this. As the Arizona State Supreme Court put it, “where a statute gives fair notice of what is to be avoided or punished, it should not be declared void for vagueness simply because it may be difficult for the public to determine how far they can go before they are in actual violation.” Fuenning v. Superior Court ex rel. Maricopa County, 139 Ariz. 590, 598, 680 P.2d 121, 129 (1983). The rule is clear enough that, by driving after drinking, “reasonable persons should know that their conduct is at risk, [Maynard v. Cartwright, 486 U. S. 356, 361 (108 SC 1853, 100 LE2d 372) (1988)], and need not necessarily guess at its meaning,” [United States v. Lanier, 520 U.S. 259, 267 (117 SC 1219, 1225, 137 LE2d 432) (1997)].28
Similarly, in considering a vagueness challenge to a statute that proscribed having a specified blood-alcohol level within two hours of driving, an Arizona court of appeals concluded as follows:
Although section 28-692 (A) (2) now provides that it is illegal to have a BAC of 0.10 or more within two hours of driving — rather than a BAC of 0.10 at the time of the offense as pro-
vided in former section 28-692 (A) (2) — the reasoning in Thompson is applicable here. By establishing a specific, objective criterion of a pre-defined BAC with which to compare an individual‘s BAC, the statute provides notice of the prohibited conduct with sufficient particularity.
Similarly, the phrase “within two hours of driving or being in actual physical control of the vehicle” provides specific and objective guidelines to the potential offender and to those charged with enforcing the law. The principal difference between former
section 28-692 (A) (2) and the present section is that the legislature has “concluded that a person with a BAC of 0.10 or greater within the two hour period poses a sufficient danger to the public to justify broadening the statutorily proscribed conduct.” Cacavas v. Bowen, 168 Ariz. 114, 116, 811 P.2d 366, 368 (App. 1991). Neither the time frame imposed nor the requirement of driving or being in actual physical control defy common understanding. The statute gives fair notice to a driver who has been drinking that blood alcohol testing may take place over a two-hour period and that a BAC of 0.10 within that time violates section 28-692 (A) (2).29
The North Carolina Supreme Court has engaged in the same analysis as the Skinner and Martin courts in concluding that North Carolina‘s counterpart to
For the foregoing reasons, we conclude that subsection (a) (5) sufficiently informs people of the conduct that is prohibited.
4. Bohannon next contends that
“A statute is unconstitutionally over-broad if it reaches a substantial amount of constitutionally protected conduct.”31 In this regard, Bohannon appears to contend that a person has a constitutional right to drink and drive so long as he is not impaired and a constitutional right to drink and drive so long as his blood-alcohol content does not reach a specified level at the time of driving. Bohannon, however, cites to no authority holding that such behavior is constitutionally protected, and we decline the opportunity to conclude that it is. Other courts have reached this same result.32
Moreover, although the Pennsylvania Supreme Court in Barud concluded that Pennsylvania‘s counterpart to subsection (a) (5) was overbroad, we conclude that the reasoning of the Barud court was fundamentally flawed. The Pennsylvania court concluded that the Pennsylvania statute was overbroad because it did not “even require any proof that the person had a BAC above the legal limit at the time of driving, thereby criminalizing conduct which has not been declared criminal by the legislature.”33 As pointed out by the federal district court in United States v. Skinner,34 this statement by the Barud court is flawed, because, in fact, the Pennsylvania legislature had made illegal the conduct in question — having a BAC of .10 or greater within three hours of driving stemming from alcohol consumed before or while driving — and had made it irrelevant to that crime whether the person had a BAC of .10 or more at the time of driving.
Because Bohannon has not demonstrated that
5. Bohannon‘s final contention is that
6. For the foregoing reasons, we reject Bohannon‘s constitutional challenges to
Judgment affirmed. All the Justices concur, except Benham, C. J., and Carley, J., who dissent.
Ryan Bohannon was charged with violating
a standard which is sufficient “to enable (individuals) to conform their conduct to avoid that which is forbidden . . . ?” Hall v. State, 268 Ga. 89, 92 (2) (485 SE2d 755) (1997). Thus, the statute “must give the individual notice so that he may make an intelligent choice when deciding whether to drive after he has been or while he is drinking.” Lester v. State, 253 Ga. 235, 236 (1) (320 SE2d 142) (1984). In my opinion,
“When a person drinks, his blood-alcohol count rises.” Lester v. State, supra at 236 (1). The majority concludes that here, as in Lester, the contested statute provides a standard sufficient to apprise an individual that his or her blood-alcohol content has risen to the proscribed level such that the act of driving should be avoided. In my opinion, Lester is entirely distinguishable because the terms of the contested statutes are fundamentally different. The former per se statute at issue in Lester proscribed a specified blood-alcohol level at the time of driving and was, therefore, sufficient to inform the public that a person whose prior consumption of alcohol was so great that the blood alcohol level had risen to that level while driving was guilty of a crime. Lester v. State, supra at 237 (1). There was a clear nexus between the prior alcohol consumption and the subsequent act of driving itself. Thus, one committed a per se violation of
Standing alone, neither the consumption of alcohol nor the oper-ation of a vehicle constitutes a crime under
I am authorized to state that Chief Justice Benham joins in this dissent.
DECIDED FEBRUARY 23, 1998.
Sean A. Black, for appellant.
James E. Cornwell, Jr., Solicitor, Thurbert E. Baker, Attorney General, Neal B. Childers, Senior Assistant Attorney General, Carol A. Callaway, Assistant Attorney General, for appellee.