Georgia DUI Cases of Note

  

Frost v State - Special Mens Rea means you have to stipulate stipulate stipulate

Thursday, August 27, 2015

Frost v. State, __ GA ___, S14G1767, Reversed, Supreme Court of Georgia, June 15, 2015. In Frost v. State, the Georgia Supreme Court reversed the Georgia Court of Appeals finding in Frost that under OCGA 24-4-417 prior DUIs offered to establish knowledge of the Defendant were admissible even if the prior DUI convictions involved refusals and not breath tests. 

In this case the Defendant was arrested in 2012 after he hit a gate at his condominium, backed out of the driveway, entered another gate, parked, and sat in his car while drinking wine and listening to loud music. The Concierge walked to the car observed the Defendant sitting in his car and went to call the police. The police came and observed the Defendant drinking in his car and alternatively sleeping and had him exit the vehicle. The Defendant refused all field tests. He was arrested and refused the state breath test. 

The state sought to use two prior DUI cases against him to prove knowledge that DUI is inherently dangerous act which is not a material issue in a DUI. In one DUI he was pulled over by police and refused all tests. In the other, DUI he was parked behind a closed business listening to music and drinking and refused all tests. 

OCGA 24-4-417 (Rule 417) provides, 

"In a criminal proceeding involving a prosecution for a violation of Code Section 40-6-391, evidence of the commission of another violation of Code Section 40-6-391 on a different occasion by the same accused shall be admissible when . . . [t]he accused refused in the current case to take the state administered test required by Code Section 40-5-55 and such evidence is relevant to prove knowledge, plan, or absence of mistake or accident..."

The Georgia Court of Appeals had adopted the commentary of Professor Milich of Georgia State University who chaired the legislative study committee for 20 years that drafted the statute which reasoned that OCGA 24-4-417 applied only, 

"[W]hen the defendant took and failed the [state-administered] test in the prior DUI and the defendant refused the test in the subject case, if the defendant at trial attempts to suggest that he did not take the test because he did not understand it, or he did not know that he could take a test, or that he would never take such a test, the prior DUI in which the defendant took and failed the test would be admissible to prove "knowledge, plan, or absence of mistake or accident."

It found that because knowledge of being drunk and driving or knowledge of the danger of DUI was an not element of a crime of general intent crime like a DUI, where the only intent required is voluntary driving, there was no permissible purpose to admit the prior DUIs in Rule 417. The Supreme Court found this to be too narrow a construction and that Rule 417 is a rule of inclusion.  

The Supreme Court found that because Rule 417 did not say that it was limited to prior cases where there was a state chemical tests that refusals should also be admissible. The Court ignored the only legislative history on 417 which confirmed the Milich view and Court of Appeals view essentially ignoring the canons of statutory construction when statutes are ambiguous.  The Supreme Court found that a prior refusal could be used as knowledge that "the accused had an awareness that his ingestion of an intoxicant impaired his ability to drive safely." This awareness, in turn, would inform why the accused refused the test in the present case despite the fact that, statutorily, the only permissible inference from a refusal is the presence of the prohibited substance. See, Bravo v. State, 249 Ga. App. 433 (2001) and OCGA 40-6-392.   The Supreme Court also found that a prior DUI could be used as knowledge "about the means by which law enforcement officers determine whether and to what extent a driver is under the influence of an intoxicant, and such awareness likewise might help to explain a refusal in the present case to submit to a test." Again why someone would refuse is not a material issue to be proved in a DUI, a general intent crime.  There is no motive requirement in a DUI.  As this knowledge of  impairment  or of law enforcement proceedings is not a material element  of DUI, this amounts to "special mens rea" (Intent or guilty mind).

The Supreme Court did not address any issues of prejudice versus probative value under OCGA 24-4-403 as this was not briefed by the parties in the Supreme Court, but it was briefed by the parties extensively in the Court of Appeals. Further, the Supreme Court's grant of certiorari directed the parties to only brief Rule 417 and not Rule 404 and Rule 403.  Presumably, Rule 403 will be addressed by the Court of Appeals on remand.  These bases of knowledge were not argued by the parties at the trial court level, in the Court of Appeals or in the Supreme Court. These were arguments raised by Amici Briefs filed by several prosecutors associations and state lobbying groups at the 11th hour after the deadline for the briefs of the parties with no opportunity for responsive briefing by the parties. See Amicus Brief PAC, Appellant Brief,  Appellee Brief, Jones Appellant Brief, Jones Appellee Brief, Jones Pac Amicus Brief, DA's Association Brief in Jones, Milich Amicus Brief and Supreme Court Oral Argument

DUI is a general intent crime. Knowledge that one is drunk and driving is not relevant to a DUI prosecution only voluntary driving -whether you know you are drunk or not- is relevant and material to a DUI prosecution.  I have had long email exchanges with Professor Edward J. Imwinkelried (American proponent of the doctrine of chances) who was cited by the State in their multiple Prosecutor‘s-Associations-Amicus briefs (filed long after the parties' briefs were submitted with no opportunity for rebuttal) and by the Supreme Court in its formal opinion, about both the Jones and Frost cases. Professor Imwinkelried succinctly captured the problem with Jones and Frost when he wrote, 

"I was taken aback by the prosecution argument that it should not be limited to the "minimum" evidence needed to prove the offense. On the one hand, they are correct in suggesting that they are not limited to the presentation of evidence barely necessary to meet their burden of production on the facts in issue. On the other hand, I am troubled by the contention that if the offense is a general mens rea crime, they are not limited to that minimum and may go farther and present evidence proving special mens rea. To begin with, that evidence might be relevant--as aggravating matter during sentencing when the facts in issue change. Moreover, their motive analogy is unsound. Motive evidence is relevant to the elements. At the very least it increases the probability that the defendant voluntarily performed the actus reus (the guilty act). That analogy is not powerful enough to serve as a justification for presenting evidence relevant only to a fact not formally in issue." 

The issue is really how can non-material facts be used against a Defendant and not be little more than thinly veiled character evidence. Further, it seems difficult to see how non-material facts could be more probative than prejudicial under a fair-minded, honest and reasoned Rule 403 analysis. While Jones and Frost are now the law of the land, it will certainly be used as a thinly veiled method for prosecutors to reincarnate "bent of mind" and "course of conduct" bad character evidence. If you want to get rid of the bad character prohibition in DUI cases just say so plainly and clearly by statute. The legislature did so in child molestation and sexual assault cases in OCGA 24-4-413 and 24-4-414 where other acts evidence can be used for any purpose. The legislature did not do so in DUI cases but limited it to the traditional permissible purposes laid out in Rule 404(b) and 417 such as Intent, Knowledge, Identity, Lack of Mistake or Accident and Plan.  It would seem, as Professor Imwinkelried suggested, that simply by filing express stipulations to (1) Voluntary Driving, (2) the presence of alcohol, (3) lack of mistake or accident, and (3) lack of brain injury or other non-alcohol causes for alleged impairment that such prior DUI investigations, arrests and convictions would have no probative value and only need a scintilla of prejudice to be excluded under Rule 403.  The lesson is for here on out stipulate, stipulate, stipulate in cases involving prior DUI cases submitted as "other acts" evidence. 

-Author: George Creal



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