Wessels v. StateWessels v. State
- Reporters:
- , ,
- Before:
- Pope
On April 24, 1982 Donald Louis Wessels was arrested and charged with various vehicular offenses, among them driving under the influence of alcohol. At the time of his arrest, defendant refused to submit to a chemical test used to determine the alcohol content of his blood. At trial it was stipulated that defendant refused such test after he had been duly informed of his rights under the Implied Consent Statute,
1. Defendant enumerates as error the denial of his motion for mistrial arguing in support thereof that the admission of his refusal to submit to the chemical test violated his constitutional right against self-incrimination as guaranteed by Art. I, Sec. I, Par. XIII of the Constitution of Georgia of 1976 (Code Ann. § 2-113) (now Art. I, Sec. I, Par. XVI, Ga. Const. 1983 (Code Ann. § 2-116)). We note initially that the United States Supreme Court has recently addressed the identical issue on the federal level as raised under the Fifth Amendment right against self-incrimination. In South Dakota v. Neville,-U. S.- (103 SC 916, 74 LE2d 748, 759) (1983), the court held “that a refusal to take a blood-alcohol test, after a police officer has lawfully requested it, is not an act coerced by the officer, and thus is not protected by the privilege against self-incrimination.
Applied to the facts of the present appeal, the holding in South Dakota v. Neville is, of course, dispositive of the question. Although defendant correctly argues that the Georgia Constitution affords more protection from self-incrimination than does the United States Constitution, the initial inquiry must be whether he had been compelled or forced to produce the evidence at issue. Our state law differentiates between compelling a criminal defendant to perform an act resulting in production of incriminating evidence and compelling him to submit to a procedure designed to extract such evidence. The former produces inadmissible evidence; the latter is admissible. See
Creamer v. State,
229 Ga. 511 (3) (192 SE2d 350) (1972);
State v. Armstead,
152 Ga. App. 56 (262 SE2d 233) (1979). We find however, that where the defendant has been properly informed
2. Defendant next contends that evidence of his refusal to submit to the blood-alcohol test is inadmissible because it is irrelevant to the question of guilt or innocence under
Johnson v. State,
125 Ga. App. 607 (2) (188 SE2d 416) (1972). For the following reasons, however, we find it necessary to overrule the holding in Division 2 of
Johnson.
In the intervening eleven years since the opinion in
Johnson,
the danger to the public safety posed by the drunk driver has been repeatedly and intensely brought to the awareness of the citizens of Georgia, through the media as well as through recently enacted statutes providing for stricter enforcement of D.U.I. laws and harsher punishment for their infraction. See Ga. L. 1983, p. 1000, Sections 12 and 13 (effective September 1, 1983 and now codified as
Additionally, we believe our holding, that a refusal to submit to a blood-alcohol test is admissible, to be supported by the legislative history of the applicable statute. The Uniform Traffic Act was adopted by the General Assembly in 1953 (Ga. L. 1953, Nov. Sess., p. 556), with Section 47 governing persons driving under the influence of intoxicating liquor or drugs. Pertaining to the criminal prosecution for the offense of D.U.I., Section 47 (b) provided for certain
For the reasons presented above, the trial court did not err in admitting evidence of appellant’s refusal to submit to the blood-alcohol test.
Judgment affirmed.
Shulman, C. J, Deen, P. J., Quillian, P. J., McMurray, P. J., Banke and Birdsong, JJ., concur. Carley and Sognier, JJ., concur in the judgment only.
Notes
While the September 1, 1983 effective date of the statute precludes its application to the present appeal, it is helpful in defining the legislative intent.