On February 5, 2016, the Georgia Court of Appeals issued its opinion in State v. Tittle, 335 Ga. App. 558, 782 SE2d 487 (2016). In what has become just another DUI “Other Acts” f/k/a “Similar Transactions” case where a Defendant who refused to take a DUI breath test had the State offer evidence of a prior DUI because it establishes “guilty knowledge.” Interestingly enough, the Court of Appeals has taken to just block quoting Justice Blackwell’s reasoning almost universally.
The Court of Appeals explained that the Supreme Court has held that the Georgia Evidence Code allows the State to introduce a defendant’s prior DUI conviction as part of its case in chief in any DUI prosecution “in which `the accused refused. . . to take the state-administered test required by Code Section 40-5-55,’” because such evidence is, at the very least, relevant to prove knowledge. State v. Frost, 297 Ga. 296, 303; 773 S.E.2d 700 (2015), quoting OCGA § 24-4-417(a)(1). In reaching this conclusion, the Court noted that a defendant’s refusal to submit to the state mandated-chemical tests “generally is admissible, see OCGA § 40-6-392(d), and a trier of fact may infer from such a refusal that, if the accused had submitted to the test, it would have shown some presence of an intoxicant.” Id. at 304, 773 S.E.2d 700. The Court then explained in the famous blockquote:
“Proof that the accused on prior occasions had driven under the influence of the same or a similar intoxicant may strengthen substantially the inference about the presence of an intoxicant. This is so because, as we noted in [State v. Jones, 297 Ga. 156, 773 S.E.2d 170 (2015) (“Jones II”)], it might properly be inferred from evidence of prior occasions on which the accused had driven under the influence that the accused had an awareness that his ingestion of an intoxicant impaired his ability to drive safely. [Guilty Knowledge] Such awareness, in turn, would explain why the accused refused the test [Exercising right against self-incrimination and legal right to refuse under the Implied Consent Statute?] on this occasion, namely, that he was conscious of his guilt and knew that the test results likely would tend to show that he was, in fact, under the influence [or aware of his legal rights?] of a prohibited substance to an extent forbidden by OCGA § 40-6-391(a). See Jones II, 297 Ga. at 159(2), 773 S.E.2d 170. Prior occasions on which the accused was arrested and charged with driving under the influence also could permit an inference in some circumstances that the accused had acquired knowledge about how law enforcement officers determine whether and to what extent a driver is under the influence of an intoxicant [Ignorance of the law is no excuse but knowledge of the law is evidence of guilt?], and such awareness likewise might help to explain a refusal in the present case to submit to a test. In either event, the trier of fact might well conclude that an adverse inference about the presence of 489*489 an intoxicant is more warranted than it otherwise would be, and the trier of fact might decide that the inference can bear more weight than it otherwise could. This is true when the accused refused the required tests on the prior occasions, and it is true even when the accused offers no evidence to explain or excuse his refusal on this occasion.”
How is the concept of “guilty knowledge” in “Other Acts” cases not a violation of Due Process of both the Federal and Georgia Constitutions? Let’s take a look.
Refusing to Blow and Refusing to Passively Allow Blood to be Taken is protected under the Georgia Constitution as a right against self-incrimination.
1. GEORGIA CONSTITUTION
A. 1983 Constitution Art. I, Sec. I, Paragraph XVI. (Self-incrimination):
“No person shall be compelled to give testimony tending in any manner to be self-incriminating.”
B. 1983 Constitution Art. I, Sec. I, Paragraph I (Due Process):
“No person shall be deprived of life, liberty, or property except by due process of law.”
2. GA CONSTITUTION PROHIBITION AGAINST SELF-INCRIMINATION APPLIES TO BREATH TESTING AND BLOOD TESTING.
1983 Constitution Art. I, Sec. I, Paragraph XVI. (Self-incrimination)applies to acts such as blowing into a breath testing device and passively allowing blood draw. “[T]he Georgia Constitution has long granted more protection to its citizens than has the United States and that, while the [Georgia] cannot grant less protection, it can grant more.” Creamer v. State, 229 Ga. 511 (1972). Quoting Day v. State, 63 Ga. 667 (1879), the Creamer court said that “a defendant cannot be compelled to incriminate himself by ACTS or words.” Examples of acts deemed to be compelled under the circumstances include handwriting exemplars (State v. Armstead,152 Ga. App. 56 (1979)), production of lottery tickets (Grant v. State, 85 Ga. App. 610 (1952)), driving a motor vehicle upon scales (Aldrich v. State, 220 Ga. 132 (1964)), and forcing a defendant to place the foot in shoe print near the scene of burglary (Day v. State, 63 Ga. 667 (1879). Therefore, the Georgia Constitution can be invoked to refuse breath testing or passively allow blood draws.
3. A CRIMINAL DEFENDANT CAN NOT BE PUNISHED FOR INVOKING PROCEDURAL/CONSTITUTIONAL RIGHT
“To punish a person because he has done what the law allows him to do is a due process violation “of the most basic sort.” Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978). In a series of cases beginning with North Carolina v. Pearce (holding that fear of vindictiveness for exercising a constitutional right is violates due process) and culminating in Bordenkircher v. Hayes, the Court has recognized this basic — and itself uncontroversial — principle. For while an individual certainly may be penalized for violating the law, he just as certainly may not be punished for exercising a protected statutory or constitutional right. (Emphasis added)” United States v. Goodwin, 457 U.S. 368 (102 S. Ct. 2485; 73 L. Ed. 2d 74)(1982)
It is not far-fetched to imagine a person being investigated for DUI deciding not to refuse testing for fear that a prior DUI would be entered into evidence if he exercised both his Georgia implied consent right to refuse, his 4th Amendment right to refuse under the U.S. and Georgia Constitutions and his 5th Amendment right to refuse under the Georgia Constitution. Due Process…I was just getting used to it.
-Author: George C. Creal, Jr.