Bohannon v. State
| Decision Date | 23 February 1998 |
| Docket Number | No. S97A2082,S97A2082 |
| Citation | 497 S.E.2d 552,269 Ga. 130 |
| Parties | BOHANNON v. The STATE. |
| Court | Georgia Supreme Court |
Sean A. Black, Toccoa, for appellant.
James E. Cornwell, Jr., Solicitor, Thurbert E. Baker, Atty. Gen., Neal B. Childers, Senior Asst. Atty. Gen., Carol A. Callaway, Asst. Atty. Gen., for appellee
We granted the application for interlocutory appeal filed by the appellant, Ryan Bohannon, to consider his due process challenges to OCGA § 40-6-391(a)(5), which provides that it is a crime to have a blood-alcohol concentration of .10 or greater, as measured within three hours of driving, if the blood-alcohol level results from alcohol consumed either before or while driving. Bohannon contends that subsection (a)(5) violates due process (1) because it is not reasonably related to a legitimate state interest, (2) because it is too vague to apprise people of the prohibited conduct, (3) because it is overbroad in that it criminalizes constitutionally protected activity, and (4) because it creates a burden-shifting presumption. We conclude that § 40-6-391(a)(5) is not unconstitutional for any of the first three reasons urged by Bohannon. We decline to address the fourth constitutional challenge because the record demonstrates that the issue was not properly raised before the trial court and was not ruled on by the trial court. For these reasons, we hold that the statute is constitutional, and affirm the trial court's judgment.
This subsection provides that it is a crime to have a blood-alcohol concentration of .10 or greater, as measured within three hours of driving, if the blood-alcohol level results from alcohol consumed either before or while driving. This provision was added to OCGA § 40-6-391(a) in 1990, as subsection (a)(4). 1 Before its amendment in 1990, § 40-6-391(a)(4) had provided that "[a] person shall not drive or be in actual physical control of any moving vehicle while: ... There is .12 percent or more by weight of alcohol in his blood." 2 In Lester v. State, we addressed the constitutionality of former subsection (a)(4), and in doing so, explained that it was irrelevant to the crime defined by that subsection (a)(4) whether or not the driver was driving while actually impaired. 3 We held that 4 We further stated that "proof of the ability to drive well while having a high blood-alcohol count will not affect the ascertainment of guilt ... under subsection (a)(4)." 5 Perhaps most significantly, we held that
[t]he legislature, in enacting subsection (a)(4), is not declaring that everyone who has a blood-alcohol count of .12% or higher will be impaired in his driving, or that everyone with a lower percentage can drive safely. The statute represents the judgment that the public interest will be best served if no one with such a high blood-alcohol count drives. 6
For these same reasons, it is clear that impaired driving ability is not an element of the offense under current subsection (a)(5); rather, the subsection defines a specific act--having a blood-alcohol concentration of .10 or greater, as measured within three hours of driving, if the blood-alcohol level results from alcohol consumed either before or while driving--and makes that act a crime.
" 7 Moreover, under its police power, the state can enact laws that promote public health, safety, and welfare, 8 and "[s]uch laws will not be held invalid if there is any basis upon which the law is aimed at a legitimate state interest." 9 Finally, in Lattarulo v. State, 10 this Court held that determining the blood-alcohol levels at which people should not drive "is within the legislature's authority under the Twenty-First Amendment and the police power and is the type of determination that is particularly well-suited to the legislative process." 11
In enacting § 40-6-391(a)(5), the General Assembly obviously concluded two things: First, that a person who consumes enough alcohol before or while driving to have an alcohol concentration of .10 or greater within three hours of driving must have had some amount of alcohol in their system at the time of driving; and, second, that the public interest is served by prohibiting such people from driving. Both of these conclusions are reasonable, and are reasonably related to public safety by curtailing alcohol-related accidents. 12 Bohannon's contention that such a law does not have a rational basis would defy common sense; would undermine the presumption of validity accorded to solemn acts of the General Assembly; would ignore the mayhem and menace caused by alcohol-related automobile wrecks; and would subvert the General Assembly's efforts to protect our society from the terrible damage caused by this other form of "traffic" in drugs.
Moreover, Bohannon's contention that subsection (a)(5) is not reasonably related to a legitimate state interest appears to rest on the false premise that the General Assembly only has an interest in legislating in the area of drinking and driving if it makes driving while actually impaired an element of the offense. We ruled against such a notion in Lester when we stated that driving while actually impaired was not an element of the offense under former subsection (a)(4), and that "[t]he statute represents the judgment that the public interest will be best served if no one with such a high blood-alcohol count drives." 13
Finally, courts around the country have made well-reasoned decisions that statutes virtually identical to § 40-6-391(a)(5) are a proper exercise of the police power. 14 For instance, in Skinner, the court concluded that the statute in question was reasonably related to public safety. In doing so, the court rejected Skinner's contention that the statute in question exceeded the police powers because it "could support a criminal conviction of persons who were not 'intoxicated' at the time they actually operated the motor vehicle." 15
To argue that the rule is unconstitutional for effectively making "legal" behavior illegal is implicitly to argue that driving with a 0.10 percent BAC or higher is the only DUI-related behavior that the State can prohibit legitimately. In other words, Appellants' argument rests on the false premise that only driving with a BAC of 0.10 percent or higher threatens the public safety. To the contrary, the legislature has decided that driving after having consumed enough alcohol to cause one's BAC to rise to 0.10 percent within two hours after driving is dangerous to the public..... The 0.10 percent BAC is not some magical bright line between safely drunk and unsafely drunk, and the fact that driving with less than a 0.10 percent BAC may prove to be criminal under the two-hour rule does not mean that the rule is arbitrary or not substantially related to public safety. 16
Similarly, the Supreme Court of North Carolina has declared that North Carolina's counterpart to our subsection (a)(5) is well within the police powers. 17
For the foregoing reasons, we hold subsection (a)(5) is reasonably related to a legitimate state interest.
3. Bohannon also contends that § 40-6-391(a)(5) is void for vagueness because it fails to give people fair warning of what conduct is prohibited. 18 For numerous compelling reasons, we disagree.
In Lester v. State, 19 this Court addressed whether former subsection (a)(4) was unconstitutionally vague. Our analysis in that case is instructive in this one. We noted that " '[m]any statutes will have some inherent vagueness for "in most English words and phrases there lurk uncertainties," ' " 20 and that " '[a]ll the Due Process Clause requires is that the law give sufficient warning that men may conduct themselves so as to avoid that which is forbidden.' " 21
As explained in Division 1 of this opinion, former subsection (a)(4) made it illegal to drive while having a blood-alcohol level of .10 or greater. Lester contended that the statute was vague because the average person could not detect when he would reach the proscribed blood-alcohol level at the time of driving, and in fact, could not know that his conduct was in violation of the statute until he had been arrested and given a chemical test. 22 We held as follows:
Where the statute informs the public that a person who has consumed a large amount of alcohol chooses to drive at his own risk, we find that the statute is sufficiently definite in informing the public so that it might avoid the proscribed conduct. 23
We conclude that the same analysis holds true for current subsection (a)(5). The only difference between the two statutes is that under former (a)(4), a person had to gauge when he had consumed a sufficiently large quantity of alcohol so that when he drove he would have the prohibited blood-alcohol level, whereas under subsection (a)(5), a person must judge when he has consumed a sufficiently large quantity of alcohol so...
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