Ammons v. State

• Decision Date: 02 November 2022
• Docket Number: S22A0542
• Citation: 315 Ga. 149,880 S.E.2d 544
• Parties: AMMONS v. The STATE.
• Court: Georgia Supreme Court

315 Ga. 149

880 S.E.2d 544

AMMONS

v.The STATE.

S22A0542

Supreme Court of Georgia.

Decided: November 2, 2022

Michael Bruce Syrop, Hunter Joseph Rodgers, Paulding County Public Defender's Office, 280 Constitution Boulevard, Room 1086, Dallas, Georgia 30132, Dustin Stephen Townsend, Paulding County Public Defender's Office, 280 Constitution Blvd, Number 2072, Dallas, Georgia 30132, for Appellant.

Anthony Brett Williams, A.D.A., Matthew Wayne Rollins, District Attorney, Paulding County District Attorney's Office, 280 Constitution Boulevard, Room 2072, Dallas, Georgia 30132, Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, for Appellee.

Bethel, Justice.

Mia Ammons is being prosecuted for driving under the influence of alcohol. She largely refused to cooperate when the state trooper who pulled her over sought to perform a preliminary breath test and various field sobriety tests, and she later refused to consent to a blood test for which no search warrant had been obtained by the police. She claims that any use of evidence of her refusal to perform the breath and field sobriety tests violates her right against self-incrimination under the Georgia Constitution. She similarly argues that two Georgia statutes that permit evidence of her refusal to consent to a blood test to be used against her violate the General Assembly's constitutional duty to enact laws that protect Georgia citizens in the full enjoyment of their rights, privileges, and immunities as citizens.

The trial court denied Ammons's motion to suppress evidence from the roadside stop, including her refusal to participate in a number of these tests, concluding that her constitutional arguments failed. We granted Ammons's application for interlocutory review of the trial court's decision.

As explained below, Ammons had the right to refuse to perform the preliminary breath test and the field sobriety tests under the Georgia Constitution, and evidence of her refusals cannot be introduced at her trial. We also determine that the Georgia Constitution's privileges and immunities clause does not bar the admission of evidence that she refused to consent to a blood test. We therefore affirm in part and reverse in part the trial court's denial of Ammons's motion to suppress.

1. Background

Ammons was charged with driving under the influence (less safe) pursuant to OCGA § 40-6-391 (a) (1).¹ She moved in limine to suppress evidence from her roadside stop and her interactions with the trooper, including with regard to her refusal to consent to a preliminary breath test, field sobriety tests, and a blood test.

The record of the hearing on Ammons's motion to suppress shows the following. Just after midnight on July 14, 2018, Ammons was driving her vehicle on a state highway in Paulding County when she was stopped by State Trooper Levi Perry because her car did not have a working light illuminating her license plate. After approaching Ammons's car and smelling alcohol on her breath, Trooper Perry asked Ammons to step out of her car. Ammons did so. Trooper Perry testified that he "immediately noticed" that Ammons was "extremely unsteady." In response to questions from Trooper Perry, Ammons said that she had consumed alcohol "a few hours prior" to the stop and that "she had a few beers." Trooper Perry testified that, during their discussion, he noticed that Ammons had "bloodshot watery eyes," seemed "withdrawn," and had slurred speech.

As their conversation continued, Trooper Perry asked Ammons if she would provide a breath sample for a preliminary breath test. She refused. Trooper Perry then asked Ammons to stand with her back against his patrol car and asked her if she had any medical conditions. She replied that, other than needing to wear glasses, she did not. Trooper Perry then directed Ammons to "look straight at [him] and [to] follow the tip of [his] finger with her eyes only." Ammons then did so for a brief period of time. Noting in his testimony that this was part of a horizontal gaze nystagmus (HGN) test, Trooper Perry testified that the test showed six out of six clues that Ammons was impaired.

Trooper Perry then began directing Ammons to perform a "walk and turn" test, but she refused to participate. Trooper Perry then arrested Ammons for DUI and read her the Georgia implied consent warning for suspects over the age of 21 and requested that that she provide a blood sample.² Ammons refused to answer when Trooper Perry asked her if she consented.

Trooper Perry testified that both a dashboard camera and a body camera he was wearing at the time recorded his interactions with Ammons. Both recordings were admitted at the hearing on the motion to suppress.

At the hearing, Trooper Perry testified that

[t]he purpose of the field sobriety and advanced roadside and impairment detection is to determine whether or not that person is indeed impaired to both give them the opportunity to counteract any initial suspicion and to ... determine what level of impairment there is.

Trooper Perry testified that the standard battery of field sobriety tests begins with an assessment of the suspect's medical conditions, such as recent head trauma or any problems with the suspect's neck, back, or legs. Once it has been ascertained that no such conditions are present, an HGN test is performed, which involves an initial evaluation of "equal tracking" of the eyes between the "ten and two" positions followed by three different evaluations: "detection of lack of smooth pursuit," "sustained nystagmus at maximum deviation," and "onset prior to maximum deviation." These tests require the suspect to follow an object, such as the tip of the officer's finger, with her eyes for several seconds. The HGN test evaluates whether there is "involuntary jerking of the eyes either caused by a medical condition or by impairment."³ Trooper Perry testified that the HGN test requires the suspect's participation and that "unless there's cooperation you can't perform it." Following an HGN test, a suspect is then asked to perform a "walk and turn" test which is used to determine the suspect's motor functions. The suspect is then typically asked to perform a "one-leg stand."

Following the hearing, the trial court denied Ammons's motion to suppress. Ammons moved for reconsideration, and the trial court entered an amended order denying the motion. In its order, the trial court determined that Ammons voluntarily performed the HGN test and that the results of the test were not obtained in violation of her rights under the Georgia Constitution. The court also determined that, under our decision in Keenan v. State , 263 Ga. 569, 571-572 (2), 436 S.E.2d 475 (1993), Ammons's refusal to perform the preliminary breath test could be admitted into evidence and that her refusal to perform field sobriety tests did not implicate her rights against self-incrimination under the Georgia Constitution because she was not in custody at the time of the refusal, citing Keenan and Long v. State , 271 Ga. App. 565, 567-569 (2), 610 S.E.2d 74 (2004). Finally, the trial court determined that, by allowing a defendant's refusal to consent to a warrantless blood test as evidence of guilt in a criminal case, Georgia's implied consent statutes, OCGA §§ 40-5-67.1 and 40-6-392, do not violate the Privileges and Immunities Clause, the Due Process Clause, or the Search and Seizure Clause of the Georgia Constitution. The same day, the trial court issued a certificate of immediate review.

Ammons timely filed in this Court an application for interlocutory review, which we granted. We directed the parties to address only the following questions:

1. Should this Court overrule its holding in [ Keenan ], that admission of evidence that a defendant refused a roadside alco-sensor test does not violate the Georgia Constitution's guarantee of the right against compelled self-incrimination?

2. Does the Georgia Constitution's guarantee of the right against compelled self-incrimination apply to field sobriety tests, such that evidence that the defendant refused to submit to such tests is inadmissible?

3. Do OCGA §§ 40-5-67.1 or 40-6-392 violate the Georgia Privileges and Immunities Clause?

Ammons timely appealed. We now address each of these questions in turn.

2. The Georgia Constitution's protection against self-incrimination applies to preliminary breath tests using an alco-sensor and field sobriety tests that require the cooperation of the suspect.

Article I, Section I, Paragraph XVI of the Georgia Constitution ("Paragraph XVI") provides that "[n]o person shall be compelled to give testimony tending in any manner to be self-incriminating." In Olevik v. State , 302 Ga. 228, 228, 806 S.E.2d 505 (2017), this Court held that this provision "applies to more than mere testimony; it also protects us from being forced to perform acts that generate incriminating evidence."⁴ Olevik specifically recognized that Paragraph XVI "prohibits law enforcement from compelling a person suspected of DUI to blow his deep lung air into a breathalyzer" for purposes of determining his blood alcohol content. Id. at 228-229, 806 S.E.2d 505. Two years later, in Elliott v. State , 305 Ga. 179, 210, 824 S.E.2d 265 2019, we determined that admission of evidence that the defendant refused to consent to a chemical breath test likewise violates the rights protected by Paragraph XVI, noting that " Paragraph XVI generally prohibits admission of a defendant's pretrial refusal to speak or act." And earlier this year, we recognized that this protection extended to state-administered urine tests. See Awad v. State , 313 Ga. 99, 103 (3), 868 S.E.2d 219 (2022) ("Under Olevik and Elliott , the right against compelled self-incrimination protected by Paragraph XVI prohibits the State from admitting into evidence a defendant's refusal to submit to a urine test...