¶1NOTICE: 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
¶2 Decided: October 25, 2022
¶3 S22A0664. THE STATE v. RANDALL.
¶4 ELLINGTON, Justice.
¶5 Antonio Randall stands accused in the State Court of Athens-
¶6Clarke County of driving under the influence of alcohol to the extent
¶7that it was less safe for him to drive, OCGA § 40-6-391 (a) (1), and
¶8other traffic offenses. The trial court granted Randall’s motion to
¶9suppress evidence of his refusal to submit to a warrantless blood test
¶10on the ground that Georgia’s Implied Consent statutes violate a DUI
¶11defendant’s due process rights by allowing blood test refusal
¶12evidence to be admitted against the defendant at trial. The State
¶13appealed.1
¶14 1Provided specified procedural requirements are satisfied, as they were here, “[a]n appeal may be taken by and on behalf of the State of Georgia from the superior courts . . . [f]rom an order, decision, or judgment excluding any . . . evidence to be used by the state at trial[.]” OCGA § 5-7-1 (a) (5). On appeal, the parties are in agreement that the evidence is
¶15admissible for the limited purpose of explaining the absence of
¶16evidence of blood test results. Consequently, it was not necessary for
¶17the trial court to consider in this case whether admitting blood test
¶18refusal evidence for other purposes against DUI defendants is
¶19constitutional. Because a trial court should consider a challenge to
¶20the constitutionality of a statute only when necessary to resolve the
¶21merits of the case at bar, we vacate the trial court’s order granting
¶22Randall’s motion to suppress.
¶23 The material facts, as developed at the hearing on Randall’s
¶24motion to suppress, are undisputed. On April 6, 2021, an Athens-
¶25Clarke County police officer initiated a traffic stop after observing
¶26Randall’s vehicle failing to maintain its lane while traveling on
¶27College Station Road. During the traffic stop, the officer smelled the
¶28odor of alcohol when Randall spoke to him and observed that
¶29Randall had glassy eyes and difficulty with balance when he exited
¶30the vehicle. The officer arrested Randall for DUI, read Randall the
¶31 2 statutory Implied Consent notice for drivers aged 21 years and over,2
¶32and requested that Randall submit to a blood test. Randall refused
¶33to submit to a blood test, and no test was performed.
¶34 In Randall’s brief in support of his motion to suppress in the
¶35trial court, he argued that using a defendant’s exercise of his right
¶36to refuse a warrantless search against him at trial as evidence of
¶37consciousness of guilt constitutes punishment for exercising a
¶38plainly available constitutional right and thereby violates a
¶39defendant’s due process rights under the United States Constitution
¶40and the Georgia Constitution. After a hearing, the trial court
¶41granted in part Randall’s motion to suppress and excluded any
¶42evidence of his refusal to consent to the requested blood test.3 The
¶43trial court reasoned that,
¶44 to the extent that OCGA § 40-5-67.1 informs a person that refusing to submit to blood testing may be offered as evidence against them at trial, it needlessly and unnecessarily chills a defendant’s exercise of the constitutional right to refuse a warrantless search. To the extent that OCGA § 40-6-392 (d) allows that evidence to
¶45 2 See OCGA §§ 40-5-55 (a); 40-5-67.1 (b) (2). 3 The trial court denied Randall’s motion to suppress evidence gathered during the traffic stop other than his refusal of the requested breath test. 3 be admitted at trial, it impermissibly and unduly burdens a defendant’s exercise of the right to refuse warrantless blood testing. Therefore, to that extent, OCGA § 40-5-67.1 and OCGA § 40-6-392 (d) violate a defendant’s due process rights guaranteed by both the United States and Georgia Constitutions.[4]
¶46 1. On the admissibility of blood test refusal evidence, the State
¶47asserts on appeal that the public is broadly aware of DUI
¶48investigation procedures and expects that blood alcohol testing is
¶49done in every DUI case. The State maintains that its purpose in
¶50introducing evidence that Randall refused a blood test is to explain
¶51to the jury why the State is not offering test results into evidence.5
¶52 4 Both sections provide that blood test refusal evidence is admissible against a defendant at trial. See OCGA §§ 40-5-67.1 (b) (If a statutory Implied Consent notice “is used by a law enforcement officer to advise a person of his or her rights regarding the administration of chemical testing, . . . the refusal to submit to a test of such person’s blood . . . shall be admitted into evidence against such person.”); 40-6-392 (d) (“In any criminal trial, the refusal of the defendant to permit a chemical analysis to be made of his blood . . . at the time of his arrest shall be admissible in evidence against him.”). 5 See Wessels v. State, 169 Ga. App. 246 (312 SE2d 361) (1983). In
¶53Wessels, the Court of Appeals held that there was then no statutory bar to the admission of refusal evidence. The court noted that 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 . . . statutes [enacted in 1983] providing for stricter enforcement of [DUI] laws and harsher punishment for their infraction. As a result, the public is generally aware of the standard procedures attendant to arrest
¶54 4 Randall, on the other hand, challenges the admissibility of test
¶55refusal evidence broadly as substantive evidence of guilt, that is,
¶56evidence of “guilty knowledge” and “consciousness of guilt.” In
¶57Randall’s brief on appeal, he states that he does not argue that all
¶58evidentiary consequences of refusing a blood test are
¶59unconstitutional, pointing to a Virginia statute providing that a DUI
¶60suspect’s unreasonable refusal to permit a blood or breath test shall
¶61be admissible into evidence for the sole purpose of explaining the
¶62absence at trial of a chemical test and not as evidence of the
¶63defendant’s guilt.6
¶64 for this offense, i.e., that chemical tests are administered by law enforcement authorities to ascertain the suspect’s level of intoxication. It logically follows that in a trial for the offense of [DUI], where the state produces no evidence of such test results, the inference raised in the minds of the jurors is that the defendant submitted to the test which resulted in a reading lower than that deemed to show intoxication. To the extent of negation of this inference, evidence of refusal to take the test is indeed relevant and admissible. Further, the defendant may in the course of trial offer explanation for such refusal. Id. at 247 (2) (citation omitted). 6 Va. Code Ann. § 18.2-268.10 (C) provides:
¶65 Evidence of a finding against the defendant under § 18.2-268.3 for his unreasonable refusal to permit a blood or breath sample to be taken to determine the alcohol or drug content of his blood shall be admissible into evidence, upon the motion of the Commonwealth
¶66 5 “Properly enacted statutes carry a presumption of
¶67constitutional validity, and inquiry into the constitutionality of a
¶68statute generally should not be made by the trial courts if a decision
¶69on the merits can be reached without doing so.” State v. Brannan,
¶70267 Ga. 315, 317 (477 SE2d 575) (1996). Here, the parties’ briefing
¶71in the trial court led the trial court to issue a ruling on the merits of
¶72Randall’s argument that, to the extent that OCGA §§ 40-5-67.1 (b)
¶73and 40-6-392 (d) allow for the introduction of evidence against an
¶74accused in a DUI prosecution, they violate state and federal due
¶75process guarantees. But clarification of the parties’ positions in
¶76appellate argument has made the constitutional ruling by the trial
¶77court on the admissibility of blood test refusal evidence unnecessary.
¶78The trial court’s order is vacated in this respect. We emphasize that,
¶79in vacating the trial court’s ruling in this case, we express no opinion
¶80 or the defendant, for the sole purpose of explaining the absence at trial of a chemical test of such sample. When admitted pursuant to this subsection such evidence shall not be considered evidence of the accused’s guilt. See Va. Code Ann. § 18.2-268.3 (establishing a civil offense of unreasonable blood or breath test refusal). 6 about the important and difficult constitutional questions that
¶81remain unresolved.
¶82 Through these proceedings, the State has restricted itself to
¶83using refusal evidence in this case only for the limited purpose of
¶84explaining the absence of test results. Thus, the State may not seek
¶85a jury instruction authorizing the jury to draw any other inference
¶86from Randall’s blood test refusal.7 Whether Randall will wish to
¶87 7 The pattern instruction, which is frequently given, provides: A person accused of driving under the influence of alcohol to the extent that he/she was less safe has the right to refuse to submit to (field sobriety exercises) (an Alco-Sensor) (chemical tests of his/her blood, breath, or urine) requested by the law enforcement officer. Should you find that the defendant refused to take the requested test, you may infer that the test would have shown the presence of (alcohol) (drugs), though not that the (alcohol) (drugs) impaired his/her driving. Whether or not you draw such an inference is for you to determine. This inference may be rebutted. The inference alone is not sufficient to convict the defendant. Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 2.84.21 (4th ed., 2022). See State v. Frost, 297 Ga. 296, 304-305 (773 SE2d 700) (2015) (A trier of fact may infer from a defendant’s refusal of a chemical test that, if the accused had submitted to the test, it would have shown some presence of an intoxicant.); Taylor v. State, 278 Ga. App. 181, 183 (3) (628 SE2d 611) (2006) (holding no error resulted from the argument that the defendant refused the requested chemical test because she was conscious of her impairment or guilt); Kelly v. State, 242 Ga. App. 30, 34 (5) (528 SE2d 812) (2000) (concluding it was not unreasonable to infer from a DUI suspect’s refusal to submit to a Stateadministered test to determine her blood alcohol content that “her refusal
¶88 7 have the jury instructed regarding the limited purpose for which
¶89refusal evidence is admitted is an issue the trial court will take up
¶90at the proper time.
¶91 2. As noted above, in addition to ruling on the constitutionality
¶92of admitting blood test refusal evidence against a defendant, the
¶93trial court ruled that, to the extent that the Implied Consent notices
¶94set out in OCGA § 40-5-67.1 (b) inform a person that refusing to
¶95submit to blood testing may be offered as evidence against him at
¶96trial, OCGA § 40-5-67.1 (b) needlessly and unnecessarily chills a
¶97defendant’s exercise of the constitutional right to refuse a
¶98warrantless search.8 Although Randall challenged the
¶99stemmed from a fear that the results would be unfavorable – i.e., that she was conscious of her impairment or guilt”). 8 OCGA § 40-5-67.1 (b) provides: “At the time a chemical test or tests are
¶100requested [of a person suspected of DUI], the arresting officer shall select and read to the person the appropriate implied consent notice” set out in the Code section. For suspects aged 21 or over, the notice reads: The State of Georgia has conditioned your privilege to drive upon the highways of this state upon your submission to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your
¶101 8 constitutionality of OCGA § 40-5-67.1 (b) in the trial court on the
¶102grounds that allowing admission of his refusal to submit to the blood
¶103test to show consciousness of guilt violated his constitutional rights,
¶104see Division 1, supra, Randall did not challenge the statute on the
¶105basis that the text of the Implied Consent notices chill a defendant’s
¶106exercise of the constitutional right to refuse a warrantless search.
¶107The trial court should not have expanded the scope of its review of
¶108the constitutionality of the statute, beyond that raised by the
¶109challenger himself. See Brannan, 267 Ga. at 317. Accordingly, the
¶110trial court’s ruling on that issue is also vacated.
¶111 Judgment vacated. All the Justices concur.
¶112 refusal to submit to blood or urine testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.08 grams or more, your Georgia driver’s license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the requested state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your (designate which test)? OCGA 40-5-67.1 (b) (2). 9