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Plemmons v. State – Making Plemonade out of Plemons

Plemmons v. State, A13A2452, February 18, 2014.  Glenn Plemmons was convicted by a jury in Forsyth County, Cumming, Georgia of DUI less safe and driving on the wrong side of the road.  Plemmons appealed after the trial court found that he had suffered a serious injury which negated the need for an arrest and reading of implied consent under Hough v. State, 279 Ga. 711, 713 (2005).  Of course, Plemmons was right as O.C.G.A. 40-5-55 cited in Hough, supra, provides “the term “traffic accident resulting in serious injuries or fatalities” means any motor vehicle accident in which a person was killed or in which one or more persons suffered a fractured bone, severe burns, disfigurement, dismemberment, partial or total loss of sight or hearing, or loss of consciousness.” A cut on the forehead does not fit in any of these categories wherein lies the Plemmons.

Not to be deterred, the Court of Appeals decided to make Plemonade from Plemmons. Plemmons had run off the road and hit a fire hydrant. He had a cut on his forehead and was bleeding.  Because of his injuries, no field tests were performed and he was taken to the hospital for treatment and not arrested and taken to jail but rather released on a copy of DUI charges or tickets.  After the Officer gave him his DUI tickets, he read him implied consent rights for state chemical testings of either his blood, breath, or urine which Plemmons refused.  It is not clear from the opinion what kind of test was requested. The only evidence of impairment was an odor of alcohol, his driving, slurred speech, the consumption of a few beers, and staggering. So in fact, Plemmons had been placed under arrest for purposes of implied consent, see Hough, supra, and was indeed proper under what amounts to the right for any reason rule.  This rule which had heretofore been applied only to cases involving de novo review and usually only in the context of the affirmance of civil summary judgment motions has now apparently been extended to criminal cases involving the erroneous standard. The city of Gainesville, v. Dodd, 275 Ga. 834, 573 S.E.2d 369 (2002) (where the Georgia Supreme Court took great pains in differentiating the “right for any reason” rule and the “erroneous legal theory exception,” and limiting the right for any reason rule to de novo appellate review.) It is also not clear if the parties in Plemmons briefed the issue of custodial arrest for purposes of implied consent but it does not appear from the recitation of facts that it was raised by the prosecution at the trial court level.

Plemmons also challenged the sufficiency of the evidence as only one of two police a the scene smelled alcohol but that is purely a jury issue and won’t be reversed on appeal if any evidence is of record to support the verdict.

-Author: George Creal