HYNES v. THE STATE.
A17A0633
Court of Appeals of Georgia
MAY 31, 2017
(801 SE2d 306)
SELF, Judge.
Heath‘s supplemental brief was ordered in 2013 on the question whether Heath would be prejudiced by defendants’ withdrawal of the admissions — the very topic this Court addressed in Heath I. In our 2014 opinion, we noted that Heath had not filed a brief on the issue and went on to hold that although the trial court did not abuse its discretion in allowing the Saylors to withdraw their admissions, the court had abused its discretion in allowing Color Imprints to do the same. 329 Ga. App. at 607-608 (2) (a), (b). Our holding in Heath I thus mooted the issue of defendants’ withdrawal of their admissions such that the trial court violated the law of the case rule when it returned to that issue in the context of whether to enter an order of dismissal against Heath. Although Heath should have either filed the supplemental brief he himself had requested or obtained the trial court‘s permission not to do so, this trial court nonetheless abused its discretion when it dismissed Heath‘s action for his failure to file a brief on an issue settled by this Court on his first appeal. We therefore reverse the dismissal and remand for further proceedings on the factual issue of the amount owed, if any, by Color Imprints to Heath. See id. at 609 (3) (b); Davis, 295 Ga. App. at 105 (affirming earlier grant of summary judgment on fraud claim when the parties were attempting to relitigate “the same issue already decided” on a second appeal).
Judgment reversed and case remanded. McFadden, P. J., and Bethel, J., concur.
DECIDED MAY 31, 2017.
Ashleigh R. Madison, Dewey N. Hayes, Jr., for appellant.
Patrick S. Ferris, for appellees.
The evidence in this case shows that on April 6, 2016, a deputy with the Cherokee County Sheriff‘s Office observed Hynes weaving across the centerline of Bells Ferry Road. The deputy conducted a traffic stop and smelled a “heavy odor of alcohol” on Hynes‘s breath. During his conversation with the deputy, Hynes first stated he had consumed “zero” alcohol but later admitted to drinking two glasses of wine. Hynes refused to participate in field sobriety testing but eventually let the officer perform the horizontal gaze nystagmus test, in which Hynes exhibited all six indicators. The deputy placed Hynes under arrest, read the implied consent notice for drivers over the age of 21, and then asked Hynes if he would submit to a blood test. Hynes refused the State-administered test but stated that he would “do an independent test.” The deputy obtained and executed a search warrant for a blood test. The deputy testified that he did not permit Hynes to obtain an independent test because “he refused implied consent.”
The transcript of the hearing on the motion to suppress includes the following colloquy between the State and the deputy:
Q: What was his answer to the implied consent card?
A: He refused State testing.
Q: Did he ever ask for an independent test?
A: He never directly asked for one, no.
Q: Okay. Did you take him to get an independent test?
A: I did not, as he refused implied consent.
Q: Now, let‘s talk about after you arrest him and you read him implied consent, he tells you in response that he‘ll do an independent test, is that right?
A: Uh-huh . . . Yes, ma‘am, he does.
Q: And do you recall hearing him on the video say, you asked him to confirm, you will do an independent test? Do you remember asking him that?
A: Yes, I believe that‘s on the video.
Q: And he responded, yes. Is that right?
A: He said he would do an independent test, yes, ma‘am.
Q: Okay. At any point thereafter was a test administered in this case?
A: A test was administered after a search warrant was completed.
Q: Okay. And what kind of test was that?
A: It was a blood test.
Q: All right. And after the blood test was administered, was there any effort made to accommodate an independent test?
A: No, ma‘am, because he refused implied consent.
Hynes moved to suppress the results of the blood test because the deputy refused to honor his request for an independent test. Hynes argued that his right to an independent test under
In his sole enumeration of error, Hynes contends that the trial court erred in ruling that
The State argues that
The question of whether a DUI suspect has the right to an independent test when that suspect refuses a test under the implied consent law, but is then tested pursuant to a search warrant, appears to be one of first impression in Georgia.1 We conduct a de novo review of the trial court‘s negative answer to this question. Jones v. State, 291 Ga. 35, 36-37 (1) (727 SE2d 456) (2012) (“When the evidence at a suppression hearing is uncontroverted and the credibility of witnesses is not in question, we conduct a de novo review of the trial court‘s application of the law to the undisputed facts.“). We begin our analysis by delineating a few basic principles related to implied consent and the rules of statutory construction.
In Williams v. State, 296 Ga. 817 (771 SE2d 373) (2015), the Supreme Court of Georgia explained that
[a DUI] suspect‘s right under the Fourth Amendment to be free of unreasonable searches and seizures applies to the compelled withdrawal of blood, and the extraction of blood is a search within the meaning of the Georgia Constitution. In general, searches are of two types: those conducted with a search warrant or those undertaken without one, and searches conducted outside the judicial process are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions.
(Citation omitted.) Id. at 819. The United States Supreme Court in Schmerber v. California, 384 U. S. 757 (86 SCt 1826, 16 LE2d 908) (1966), recognized the presence of “exigent circumstances” as the first exception to the warrant requirement in the context of a blood test taken by a physician while the defendant was in the hospital after being arrested, ruling that a warrantless blood draw may be appropriate where the officer was confronted with an emergency which threatened “‘the destruction of evidence.‘” Id. at 770-771 (IV). See also Missouri v. McNeely, 569 U. S. 141 (133 SCt 1552, 185 LE2d 696) (2013) (rejecting per se rule of admissibility of warrantless blood draws based upon exigent circumstances). Another exception to the warrant requirement is a search pursuant to consent. See Cooper v. State, 277 Ga. 282, 291 (VI) (587 SE2d 605) (2003). Georgia‘s implied consent law is based on this exception. See id.
In codifying Georgia‘s implied consent law, our General Assembly declared as a matter of law that persons in control of any moving vehicle while having an illegal blood alcohol concentration “consti-tute[] a direct and immediate threat to the welfare and safety of the general public.”
any person who operates a motor vehicle upon the highways or elsewhere throughout this state shall be deemed to have given consent, subject to Code Section 40-6-392, to a chemical test or tests of his or her blood, breath, urine, or other bodily substances for the purpose of determining the presence of alcohol or any other drug, if arrested for any offense arising out of acts alleged to have been committed in violation of Code Section 40-6-391 or if such person is involved in any traffic accident resulting in serious injuries or fatalities. The test or tests shall be administered at the request of a law enforcement officer having reasonable grounds to believe that the person has been driving or was in actual physical control of a moving motor vehicle upon the highways or elsewhere throughout this state in violation of Code Section 40-6-391. The test or tests shall be administered as soon as possible to any person who operates a motor vehicle upon the highways or elsewhere throughout this state who is involved in any traffic accident resulting in serious injuries or fatalities. Subject to Code Section 40-6-392, the requesting law enforcement officer shall designate which of the test or tests shall be administered, provided a blood test with drug screen may be administered to any person operating a motor vehicle involved in any traffic accident resulting in serious injuries or fatalities.
Id. This Code section is part of the implied consent statutory scheme which also includes
(a) Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person in violation of Code Section 40-6-391, evidence of the amount of alcohol or drug in a person‘s blood, urine, breath, or other bodily substance at the alleged time, as determined by a chemical analysis of the person‘s blood, urine, breath, or other bodily substance shall be admissible. Where such a chemical test is made, the following provisions shall apply: (1) (A) Chemical analysis of the person‘s blood, urine, breath, or other bodily substance, to be considered valid under this Code section, shall have been performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation on a machine which was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order and by an individual possessing a valid permit issued by the Division of Forensic Sciences for this purpose. The Division of Forensic Sciences of the Georgia Bureau of Investigation shall approve satisfactory techniques or methods to ascertain the qualifications and competence of individuals to conduct analyses and to issue permits, along with requirements for properly operating and maintaining any testing instruments, and to issue certificates certifying that instruments have met those requirements, which certificates and permits shall be subject to termination or revocation at the discretion of the Division of Forensic Sciences.
. . .
(2) When a person shall undergo a chemical test at the request of a law enforcement officer, only a physician, registered nurse, laboratory technician, emergency medical technician, or other qualified person may withdraw blood for the purpose of determining the alcoholic content therein, provided that this limitation shall not apply to the taking of breath or urine specimens. No physician, registered nurse, or other qualified person or employer thereof shall incur any civil or criminal liability as a result of the medically proper obtaining of such blood specimens when requested in writing by a law enforcement officer;
(3) The person tested may have a physician or a qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer. The justifiable failure or inability to obtain an additional test shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer; and
(4) Upon the request of the person who shall submit to a chemical test or tests at the request of a law enforcement officer, full information concerning the test or tests shall be made available to him or his attorney. The arresting officer at the time of arrest shall advise the person arrested of his rights to a chemical test or tests according to this Code section. . .
Drunk drivers take a grisly toll on the Nation‘s roads, claiming thousands of lives, injuring many more victims, and inflicting billions of dollars in property damage every year. To fight this problem, all States have laws that prohibit motorists from driving with a blood alcohol concentration (BAC) that exceeds a specified level. But determining whether a driver‘s BAC is over the legal limit requires a test, and many drivers stopped on suspicion of drunk driving would not submit to testing if given the option. So every State also has long had what are termed “implied consent laws.” These laws impose penalties on motorists who refuse to undergo testing when there is sufficient reason to believe they are violating the State‘s drunk-driving laws.
Id. at 444 (136 SCt at 2166).
Like many other states, Georgia relies upon incentives and penalties in the
[T]he choice to submit or refuse to submit to the analysis of one‘s blood, breath, urine or other bodily substance will not be an easy or pleasant one to make, “but the criminal process often requires suspects and defendants to make difficult choices.” DUI defendants similarly must determine, often under difficult and stressful circumstances, whether to request an independent test.4
Id. at 102-103 (2), citing South Dakota v. Neville, 459 U. S. 553, 560 (II) (103 SCt 916, 74 LE2d 748) (1983).
In Neville, the United States Supreme Court held that “the admission into evidence of a defendant‘s refusal to submit to [a blood-alcohol test] does not offend the right against self-incrimination.” Neville, supra, 459 U. S. at 554. The Court reasoned that a DUI suspect‘s right to refuse chemical testing was not a right of “constitutional dimension,” but “simply a matter of grace bestowed by the South Dakota legislature.” Id. at 565 (III).5 The defendant in Neville argued that admission into evidence of his refusal to take a blood-alcohol test violated the Due Process Clause in much the same way that the Due Process Clause forbids the state from using the defendant‘s silence after a Miranda warning against him at trial. Id. at 564 (III). The Court rejected this argument, finding that
the Miranda warnings emphasize the dangers of choosing to speak (“whatever you say can and will be used as evidence against you in court“), but give no warning of adverse consequences from choosing to remain silent. This imbalance in the delivery of Miranda warnings, [however], implicitly assures the suspect that his silence will not be used against him. The warnings challenged here, by contrast, contained no such misleading implicit assurances as to the relative consequences of his choice. The officers explained that, if respondent chose to submit to the test, he had the right to know the results and could choose to take an additional test by a person chosen by him.
Id. at 565 (III). The Court also pointed out that the warning that the State could revoke the DUI suspect‘s license for one year “made it clear that refusing the test was not a ‘safe harbor,’ free of adverse consequences.” Id. at 566 (III). The case law interpreting implied consent laws demonstrates that the judiciary overwhelmingly sanctions the use of civil penalties and evidentiary consequences against DUI suspects who refuse to comply.
Statutory Construction
Our consideration of Hynes‘s enumeration of error requires application of the elementary rules of statutory construction.
[I]n considering the meaning of a statute, our charge as an appellate court is to presume that the General Assembly meant what it said and said what it meant. Thus, we must afford the statutory text its plain and ordinary meaning, consider the text contextually, read the text in its most natural and reasonable way, as an ordinary speaker of the English language would, and seek to avoid a construction that makes some language mere surplusage. Importantly, when the language of a statute is plain and susceptible of only one natural and reasonable construction, courts must construe the statute accordingly.
(Citations and punctuation omitted.) Wright v. Brown, 336 Ga. App. 1, 3 (2) (783 SE2d 405) (2016). See also Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013). Additionally, when a statute is part of a statutory scheme, as in this case, it must be analyzed in relation to other statutes of which it is a part. As our Supreme Court has explained,
in our search for the meaning of a particular statutory provision, we look not only to the words of that provision, but we consider its legal context as well. After all, context is a primary determinant of meaning. For context, we may look to the other provisions of the same statute, the structure and history of the whole statute, and the other law — constitutional, statutory, and common law alike — that forms the legal background of the statutory provision in question. This is what we mean when we speak of discerning “the intent of the legislature,” as that “intent” is reflected in the relevant statutory text and its contextual backdrop.
(Citations and punctuation omitted.) Algren v. State, 330 Ga. App. 1, 7 (3) (764 SE2d 611) (2014).
Analysis
Bearing in mind the principles of implied consent and statutory construction, we now consider the question of whether a DUI suspect has the right to an independent test when that suspect refuses testing under the implied consent law but is then tested pursuant to a search warrant. As noted previously, Hynes contends that he was entitled to an independent test because under the plain language of
The case law discussed above demonstrates that under implied consent law, a DUI suspect has the option of accepting or refusing the State-administered test, after being advised of the attendant consequences for both choices. The law provides for penalties, including license revocation and admission into evidence of the refusal to submit to State-administered testing, but also offers a DUI suspect an incentive “carrot” of additional testing after accepting the required State-administered chemical testing. In Neville, supra, the United States Supreme Court implicitly approved the use of such an incentive, which we interpret conversely: If a DUI suspect chooses not to take the State-administered test, he or she is not entitled to take advantage of the “additional test” incentive. As we noted above, the choice to submit or refuse testing is not an easy or pleasant one to make, but the criminal process often requires suspects and defendants to make hard choices, some of which will result in adverse consequences, some of which will result in favorable consequences. Contrary to Hynes‘s contention, Georgia‘s implied consent warning has everything to do with whether he was entitled to an independent blood test; if he chose to submit to State-administered testing as provided by the implied consent notice, he would be entitled to take advantage of the incentive offered. He refused to submit to the required State-administered test and must, therefore, suffer the adverse consequences of that choice. This result is consistent with our existing law that defendants forfeit their “right to such independent testing by refusing the arresting officer‘s request to submit to a [S]tate-administered breath test after being advised under
Reading the statute in the manner suggested by Hynes would vitiate the nature of
If the General Assembly had intended
Hynes‘s claim fails for another reason as well. As noted above,
Upon the written complaint of any certified peace officer of this state or its political subdivisions charged with the duty of enforcing the criminal laws and otherwise as authorized in Code Section 17-5-20 under oath or affirmation, which states facts sufficient to show probable cause that a crime is being committed or has been committed and which particularly describes the place or person, or both, to be searched and things to be seized, any judicial officer authorized to hold a court of inquiry to examine into an arrest of an offender against the penal laws, referred to in this Code section as “judicial officer,” may issue a search warrant . . .
Construing the plain language of
Hynes further contends that denying an independent test to a DUI suspect who is tested pursuant to a search warrant creates an absurd result whereby only those who waive their Fourth Amendment rights would be entitled to have their blood drawn by qualified medical personnel. The facts of this case, however, do not require us to address this scenario. But see Jackson v. State, 340 Ga. App. 228, 230 (2) (797 SE2d 152) (2017) (under implied consent, there is no requirement that a chemical analysis of blood to detect the presence of drugs be performed by “qualified medical personnel“).
In sum, because Hynes refused to submit to the chemical testing requested by the arresting officer pursuant to
Judgment affirmed. Dillard, P. J., and Ray, J., concur.
DECIDED MAY 31, 2017.
Erin H. Gerstenzang, Andrew S. Fleischman, for appellant.
Jessica K. Moss, Solicitor-General, Carlton T. Hayes, Benjamin Huntington, Assistant Solicitors-General, for appellee.