THE STATE v. HERRERA-BUSTAMANTE
S18A0703
Supreme Court of Georgia
August 20, 2018
304 Ga. 259
NAHMIAS, Justice.
DUI breathalyzer tests; constitutional question. Gwinnett State Court. Before Judge Brantley.
Moises Herrera-Bustamante was convicted after a jury found him guilty of driving under the influence of alcohol and having an open container of alcohol. About a year later, while his motion for new trial was pending, this Court decided Olevik v. State, 302 Ga. 228 (806 SE2d 505) (2017), which held that under the compelled self-incrimination clause of the
1.
On December 15 and 16, 2016, Herrera-Bustamante was tried before a jury in state court on charges of driving under the influence (less safe), driving with a suspended license, possessing an open alcoholic beverage container, and failure to maintain lane. The State‘s only witness, Gwinnett County Police Officer Austin York, testified that at about 1:00 a.m. on the night of October 15, 2015, he saw a car cross the right-side lane line and almost run off the road before gently swerving back into the travel lane. Officer York initiated a traffic stop, and the car, which Herrera-Bustamante was driving with a passenger in the front seat, pulled over. As the officer approached the car, he smelled an odor of marijuana and alcohol. Officer York asked Herrera-Bustamante for his driver‘s license, but he said he could not find it and gave the officer a work identification card instead; a computer check indicated that his license had been suspended. Officer York asked Herrera-Bustamante to get out of the car, which he had difficulty doing and appeared unsteady on his feet. The officer smelled alcohol on Herrera-Bustamante‘s breath and asked how much he had to drink that night. He first said that he had not had any alcohol, but when the officer asked about the odor, he admitted to drinking one beer two or three hours earlier. Herrera-Bustamante agreed to perform field sobriety tests; Officer York had him perform three tests and observed a total of 10 out of a possible 18 clues, which indicated impairment.
At that point, Officer York arrested Herrera-Bustamante for DUI and put him in the back of the patrol car. The officer then read Herrera-Bustamante the statutory implied consent notice for drivers age 21 and older found in
Herrera-Bustamante also testified at the trial, claiming that he did not cross the side lane line, that he had consumed only one beer two or three hours before he was stopped, that he did not immediately tell the officer about this beer because he did not think a drink consumed so much earlier “counted,” and that he had trouble getting out of the car because he had back issues. He added that he had paid the fine to have his driver‘s license restored and that the whiskey bottle had been left in his car the day before by a friend.
The jury found Herrera-Bustamante guilty of DUI less safe and the open container violation but acquitted him of driving with a suspended license and failure to maintain lane. The court sentenced him to serve one year on probation, pay a fine of $300, and perform 80 hours of community service.
On December 30, 2016, Herrera-Bustamante filed a motion for new trial summarily raising the general grounds and claims that the evidence was insufficient to support his convictions and that the trial court improperly admitted unspecified evidence. On October 16, 2017, this Court issued its opinion in Olevik, which analyzed DUI breathalyzer tests under
On October 30, 2017, the trial court heard oral arguments on the motion. In addition to the merits, the State argued that Herrera-Bustamante had not properly preserved any constitutional challenge based on Olevik. Herrera-Bustamante‘s counsel did not address that issue, nor did the trial court. Instead, the court announced at the end of the hearing that it was granting the motion for new trial “based on its interpretation of the holdings in Olevik,” and the next day the court signed a summary order granting the motion.1 The State then filed this appeal.
2.
Two Georgia statutes expressly direct that evidence of a defendant‘s refusal to take a breath test is admissible at trial under circumstances like the ones in this case.
Notwithstanding these statutes, in his brief to this Court as in his amended motion for new trial, Herrera-Bustamante contends that the trial court erred in allowing Officer York to testify that he refused to take a breathalyzer test, because the admission of such refusal evidence violates Paragraph XVI. For the first time here, but as a natural extension of his core contention, he also argues that
Extrapolating from Olevik‘s holding that he had a state constitutional right to refuse to take a breathalyzer test, Herrera-Bustamante argues that evidence that he exercised that right and refused testing could not be lawfully admitted against him, just as a defendant‘s invocation of his right against self-incrimination under the Fifth Amendment cannot be admitted against him as a matter of federal constitutional law. See Miranda v. Arizona, 384 U.S. 436, 468 n.37 (86 SCt 1602, 16 LE2d 694) (1966) (“In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.“); Howard v. State, 237 Ga. 471, 474 (228 SE2d 860) (1976) (holding based on Miranda and Griffin v. California, 380 U. S. 609, 614 (85 SCt 1229, 14 LE2d 106) (1965), that “it is reversible error to instruct the jury in a criminal case . . . that silence . . . by a person in police custody may amount to an admission (of guilt)“). This is an important issue, and we have granted review in other pending cases to address it. See, e.g., Elliott v. State, S18A1204; Garvin v. State, S18A1112. But we cannot properly decide the issue in this case.
(a) To begin with, Herrera-Bustamante is not entitled to ordinary appellate review of his claims that the breathalyzer refusal evidence was inadmissible or that the statutes directing its admissibility are unconstitutional, because he did not properly preserve those claims for review. Herrera-Bustamante asserts that he is entitled to benefit from the holding in Olevik even though that decision was issued after his trial. It is true that under the so-called “pipeline” rule, Georgia appellate courts will apply “a new rule of criminal procedure . . . to all cases then on direct review or not yet final.” Taylor v. State, 262 Ga. 584, 586 (422 SE2d 430) (1992).
Even assuming that Olevik announced such a new rule, however, as we also explained in Taylor, we will apply a new procedural rule only if the issue to which it pertains was properly preserved for appellate review. See id. (“Application of the new rule to a pending case will, of course, depend on the preservation of the issue for appellate review.“) In other words, the pipeline rule does not alter the general rule that objections to the admission of evidence must be raised in a timely fashion at trial for the objection to be preserved for ordinary appellate review. See
We also have repeatedly held that challenges to the constitutionality of a statute must be made at the first available opportunity and cannot be withheld until a motion for new trial, much less an appeal. See, e.g., Lewis v. State, 279 Ga. 69, 70 (608 SE2d 602) (2005); Hardeman v. State, 272 Ga. 361, 361 (529 SE2d 368) (2000). See also Corbin v. State, 212 Ga. 231, 233 (91 SE2d 764) (1956) (applying this principle in the context of a challenge to a trial procedure statute).2
(b) The unavailability of ordinary review does not end our analysis of Herrera-Bustamante‘s evidentiary claim, however. “Although [he] did not object to [the breathalyzer refusal] evidence at trial, under Georgia‘s new Evidence Code, the rulings related to this evidence are subject to review on appeal for ‘plain error( ) affecting substantial rights.‘” Gates v. State, 298 Ga. 324, 326 (781 SE2d 772) (2016) (quoting
To show plain error, [Herrera-Bustamante] must point to an error that was not affirmatively waived, the error must have been clear and not open to reasonable dispute, the error must have affected his substantial rights, and the error must have “seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.” Lupoe v. State, 300 Ga. 233, 243 (794 SE2d 67) (2016) (citation and punctuation omitted). We need not analyze all of the elements of this test when, as in this case, the defendant has failed to establish one of them. See Stripling v. State, 304 Ga. 131 (816 SE2d 663) (2018).
Herrera-Bustamante has not shown that the trial court‘s admission of the breathalyzer refusal evidence was clear error. “‘[A]n error is plain if it is clear or obvious under current law. An error cannot be plain where there is no controlling authority on point . . . .‘” Simmons, 299 Ga. at 374 (citation omitted). The “current law” considered is the law at the time of appellate review rather than at trial, see Lyman v. State, 301 Ga. 312, 317-318 (800 SE2d 333) (2017), but “[a]n error is not plain under ‘current law’ ‘if a defendant‘s theory requires the extension of precedent.‘” United States v. Trejo, 610 F3d 308, 319 (5th Cir. 2010) (citation omitted).
Herrera-Bustamante‘s claim that it is obvious that the admission of evidence of his refusal to take a breath test was unconstitutional hinges on whether evidence that a defendant exercised his right to refuse to take a breath test (a right protected only by the Georgia Constitution) must be treated the same as evidence that a defendant exercised his right to refuse to answer questions (a right protected by both the Georgia and United States Constitutions). Herrera-Bustamante argues that both types of refusal evidence must be treated the same way because Olevik said that Paragraph XVI of our State Constitution encompasses the right both not to speak and not to act to generate evidence at the compulsion of the State. And, the argument continues, because existing precedent holds that a defendant‘s invocation of his right to silence cannot be used as evidence against him, see Miranda, 384 U. S. at 468 n.37; Howard, 237 Ga. at 474, invocation of the right not to take a breath test cannot be admitted either.
The problem for Herrera-Bustamante is that endorsement of his argument would require
Herrera-Bustamante cites cases from this Court that did not allow the use in a criminal case of evidence that a defendant previously invoked his right against self-incrimination protected by the Georgia Constitution in the context of a formal proceeding. See Loewenherz v. Merchants’ and Mechanics’ Bank of Columbus, 144 Ga. 556, 559 (87 SE 778) (1916) (grand jury testimony); Harrison v. Powers, 76 Ga. 218, 245 (1886) (deposition testimony). However, a later case from this Court rejected a challenge under the federal and state Constitutions to the admission of evidence that the defendant remained silent when he was being questioned by law enforcement while in custody and his co-defendant said something that he would normally be expected to deny. See Emmett v. State, 195 Ga. 517, 535-537 (25 SE2d 9) (1943). See also Bennett v. State, 231 Ga. 458, 462 (202 SE2d 99) (1973) (rejecting a similar argument based on the federal constitutional right to remain silent).
Emmett, Bennett, and similar cases were overruled by Howard, which held that “it is reversible error to instruct the jury in a criminal case . . . that silence or acquiescence by a person in police custody may amount to an admission (of guilt),” but Howard‘s holding was based explicitly on Miranda and other federal constitutional case law, see 237 Ga. at 475. Olevik expressly declined to address whether even the core holding of Miranda should be extended to the rights protected by Paragraph XVI as a matter of Georgia constitutional law. See Olevik, 302 Ga. at 250 & n.13 (declining to address whether “we should impose a Miranda-style prophylactic rule [requiring the police to advise suspects in custody that their breathalyzer test results may be used against them at trial] to protect suspects’ Paragraph XVI rights“). Moreover, as Herrera-Bustamante acknowledges, there is existing Georgia law that cuts squarely against his claim of inadmissibility of evidence that he refused to take a DUI chemical test — Court of Appeals cases like Wessels v. State, 169 Ga. App. 246, 246-247 (312 SE2d 361) (1983), along with
For these reasons, whatever questions Olevik may raise regarding the admission of evidence of a defendant‘s refusal to take a breathalyzer test, a holding that such evidence is inadmissible would require the extension of precedent — indeed, its extension to strike down two statutory provisions — and that is fatal to Herrera-Bustamante‘s claim under plain-error review. See Simmons, 299 Ga. at 374-375; Trejo, 610 F3d at 319. See also Wilson v. State, 291 Ga. 458, 460 (729 SE2d 364) (2012) (applying this principle in plain-error review of a jury instruction issue under
Judgment reversed and case remanded. Hines, C. J., Melton, P. J., Benham, Hunstein, Blackwell, Boggs, and Peterson, JJ., concur.
Decided August 20, 2018.
Rosanna M. Szabo, Solicitor-General, Joëlle M. Nazaire, Samuel R. d‘Entremont, Assistant Solicitors-General, for appellant.
Ramón Alvarado, for appellee.