State v. Herrera-Bustamante, S18A0703

• Decision Date: 20 August 2018
• Docket Number: S18A0703
• Citation: 304 Ga. 259,818 S.E.2d 552
• Parties: The STATE v. HERRERA-BUSTAMANTE.
• Court: Georgia Supreme Court

304 Ga. 259

818 S.E.2d 552

The STATE

v.HERRERA-BUSTAMANTE.

S18A0703

Supreme Court of Georgia.

Decided: August 20, 2018

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, DEPARTMENT OF LAW, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Rosanna M. Szabo, Solicitor-General, Samuel Richard d'Entremont, Assistant Solicitor-General, Joelle M. Nazaire, OFFICE OF THE GWINNETT COUNTY SOLICITOR GENERAL, Daniel J. Porter, District Attorney, GWINNETT COUNTY DISTRICT ATTORNEY'S OFFICE, 75 Langley Drive, Lawrenceville, Georgia 30046, for Appellant.

Ramón Alvarado, THE LAW OFFICE OF RAMÓN ALVARADO, 4001-A Wetherburn Way, Norcross, Georgia 30092, for Appellee.

NAHMIAS, Justice.

Moises Herrera-Bustamante was convicted after a jury found him guilty of driving under the influence of alcohol and having an open container of alcohol. About a year later, while his motion for new trial was pending, this Court decided Olevik v. State, 302 Ga. 228, 806 S.E.2d 505 (2017), which held that under the compelled self-incrimination clause of the Georgia Constitution, individuals have the right to refuse to take a breathalyzer test. Herrera-Bustamante then amended his motion for new trial to argue for the first time that evidence that he refused to consent to a breathalyzer test should not have been admitted against him at his DUI trial. The trial court agreed and granted him a new trial on this ground. Because Herrera-Bustamante never raised this claim at trial and has not shown that the admission of the breathalyzer refusal evidence was plain error, however, we reverse the order granting him a new trial and remand the case for the trial court to consider the other grounds raised in the amended motion for new trial.

1. On December 15 and 16, 2016, Herrera-Bustamante was tried before a jury in state court on charges of driving under the influence (less safe), driving with a suspended license, possessing an open alcoholic beverage container, and failure to maintain lane. The State’s only witness, Gwinnett County Police Officer Austin York, testified that at about 1:00 a.m. on the night of October 15, 2015, he saw a car cross the right side lane line and almost run off the road before gently swerving back into the travel lane. Officer York initiated a traffic stop, and the car, which Herrera-Bustamante was driving with a passenger in the front seat, pulled over. As the officer approached the car, he smelled an odor of marijuana and alcohol. Officer York asked Herrera-Bustamante for his driver’s license, but he said he could not find it and gave the officer a work identification card instead; a computer check indicated that his license had been suspended. Officer York asked Herrera-Bustamante to get out of the car, which he had difficulty doing and appeared unsteady on his feet. The officer smelled alcohol on Herrera-Bustamante’s breath and asked how much he had to drink that night. He first said that he had not had any alcohol, but when the officer asked about the odor, he admitted to drinking one beer two or three hours earlier. Herrera-Bustamante agreed to perform field sobriety tests; Officer York had him perform three tests and observed a total of 10 out of a possible 18 clues, which indicated impairment.

At that point, Officer York arrested Herrera-Bustamante for DUI and put him in the back of the patrol car. The officer then read Herrera-Bustamante the statutory implied consent notice for drivers age 21 and older found in OCGA § 40-5-67.1 (b) (2) and asked if he would consent to a breathalyzer test. Herrera-Bustamante sat silently for 10 or 15 seconds, which the officer interpreted as a refusal to take the breath test. Officer York then searched Herrera-Bustamante’s car and found a partially empty bottle of whiskey directly behind the passenger seat in easy access of the driver.

Herrera-Bustamante also testified at the trial, claiming that he did not cross the side lane line, that he had consumed only one beer two or three hours before he was stopped, that he did not immediately tell the officer about this beer because he did not think a drink consumed so much earlier "counted," and that he had trouble getting out of the car because he had back issues. He added that he had paid the fine to have his driver’s license restored and that the whiskey bottle had been left in his car the day before by a friend.

In the State’s opening statement and closing argument, the prosecutor pointed out that Herrera-Bustamante had refused to take the breath test. In closing, the prosecutor argued that if Herrera-Bustamante truly had consumed only one beer hours earlier, the test would have shown a blood alcohol level of almost nothing, and urged the jurors to consider his refusal to take the test in their deliberations. The trial court instructed the jury that a defendant has a right to refuse to take a breath test, but if he does refuse, the jury may infer that the test would have shown the presence of alcohol, although such an inference is not required and can be rebutted. Herrera-Bustamante did not object to the admission of the breathalyzer refusal evidence, to the arguments about that evidence, or to the jury instructions on how to consider that evidence.

The jury found Herrera-Bustamante guilty of DUI less safe and the open container violation but acquitted him of driving with a suspended license and failure to maintain lane. The court sentenced him to serve one year on probation, pay a fine of $300, and perform 80 hours of community service.

On December 30, 2016, Herrera-Bustamante filed a motion for new trial summarily raising the general grounds and claims that the evidence was insufficient to support his convictions and that the trial court improperly admitted unspecified evidence. On October 16, 2017, this Court issued its opinion in Olevik, which analyzed DUI breathalyzer tests under Article I, Section I, Paragraph XVI of the Georgia Constitution of 1983, which guarantees that "[n]o person shall be compelled to give testimony tending in any manner to be self-incriminating." Olevik held that "Paragraph XVI protects against compelled breath tests and affords individuals a constitutional right to refuse [such] testing," and that reading a suspect the statutory implied consent notice does not, without more, compel a breath test. Olevik, 302 Ga. at 252, 806 S.E.2d 505. Ten days later, with new counsel, Herrera-Bustamante filed an amended motion for new trial in which he claimed that his refusal to perform a breath test was unconstitutionally admitted as evidence against him, that the record is unclear as to whether he was present for all critical moments of his trial, and that Officer York’s testimony about the suspended license was inadmissible hearsay.

On October 30, 2017, the trial court heard oral arguments on the motion. In addition to the merits, the State argued that Herrera-Bustamante had not properly preserved any constitutional challenge based on Olevik. Herrera-Bustamante’s counsel did not address that issue, nor did the trial court. Instead, the court announced at the end of the hearing that it was granting the motion for new trial "based on its interpretation of the holdings in Olevik," and the next day the court signed a summary order granting the motion.¹ The State then filed this appeal.

2. Two Georgia statutes expressly direct that evidence of a defendant’s refusal to take a breath test is admissible at trial under circumstances like the ones in this case. OCGA § 40-6-392 (d) says: "In any criminal trial, the refusal of the defendant to permit a chemical analysis to be made of his blood, breath, urine, or other bodily substance at the time of his arrest shall be admissible in evidence against him." And the final paragraph of OCGA § 40-5-67.1 (b), which sets forth the implied consent notices to be read to various classes of drivers, says: "If any such notice is used by a law enforcement officer to advise a person of his or her rights regarding the administration of chemical testing, ... the results of any chemical test, or the refusal to submit to a test, shall be admitted into evidence against such person."

Notwithstanding these statutes, in his brief to this Court as in his amended motion for new trial, Herrera-Bustamante contends that the trial court erred in allowing Officer York to testify that he refused to take a breathalyzer test, because the admission of such refusal evidence violates Paragraph XVI. For the first time here, but as a natural extension of his core contention, he also argues that OCGA §§ 40-6-392 (d) and 40-5-67.1 (b) are unconstitutional. Herrera-Bustamante bases these arguments on Olevik, which reaffirmed this Court’s precedents holding that Paragraph XVI —like its predecessor provisions in all of Georgia’s Constitutions since 1877, but unlike the Fifth Amendment to the United States Constitution—protects individuals against being compelled to generate evidence against themselves through acts as well as statements. See Olevik, 302 Ga. at 235-241, 806 S.E.2d 505. Olevik then held that providing the deep lung breath needed for a breathalyzer test is such an evidence-generating act, and expressly overruled DUI cases like Klink v. State, 272 Ga. 605, 533 S.E.2d 92 (2000), "to the extent they hold that Paragraph XVI of the Georgia Constitution does not protect against compelled breath tests or that the right to refuse to submit to such testing is not a constitutional right." Olevik, 302 Ga. at 241-246 & n.11, 806 S.E.2d 505.

Extrapolating from Olevik’s holding that he had a state constitutional right to refuse to take a breathalyzer test, Herrera-Bustamante argues that evidence that he exercised that right and refused testing could not be lawfully admitted against him, just as a defendant’s invocation of his right against self-incrimination under the Fifth Amendment cannot be admitted against him as a matter of federal...