Fantasia v. State
| Decision Date | 15 September 1997 |
| Docket Number | No. S97A0611,S97A0611 |
| Citation | 268 Ga. 512,491 S.E.2d 318 |
| Parties | , 97 FCDR 3426 FANTASIA v. The STATE. |
| Court | Georgia Supreme Court |
The Chestney Law Firm, Robert W. Chestney, Michael M. Hawkins, Atlanta, for Vincent C. Fantasia, Jr.
Ralph T. Bowden, Jr., Solicitor, W. Cliff Howard, Michael D. Johnson, Assistant Solicitors, for the State.
Thurbert E. Baker, Atty. Gen., Carol A. Callaway, Asst. Atty. Gen., Kenneth W. Mauldin, Solicitor, Clarke County, for Amicus Appellee.
Vincent Fantasia was convicted of driving under the influence with an unlawful blood alcohol level. After his arrest, Fantasia submitted to a State-administered breath test on an Intoxilyzer 5000 breath-testing machine which registered a .134 blood alcohol concentration. At trial, the court admitted into evidence certificates of inspection for the Intoxilyzer 5000 certifying that the breath-testing device was in good working order with all of its electronic and operating components properly attached. See OCGA § 40-6-392(a)(1)(A). The trial court also admitted the results of Fantasia's breath test. Fantasia appeals to this Court raising, inter alia, constitutional challenges to OCGA § 40-6-392(f) () and OCGA § 40-6-392(d) (). Finding no constitutional infirmity in the challenged statutes or error in the remaining enumerations, we affirm.
1. Fantasia's constitutional challenge of OCGA § 40-6-392(f) has been decided adversely to him and is controlled by this Court's recent decision in Brown v. State, 268 Ga. 76, 485 S.E.2d 486 (1997).
2. Under Georgia law, a person suspected of driving under the influence who is asked to submit to a State-administered breath test has the right to refuse the test, see OCGA § 40-5-67.1(d); by law, police must inform the suspect of his right to refuse. Id. at (b). Should a suspect refuse to submit to the test, however, the Department of Public Safety may suspend the suspect's driver's license for a minimum of one year, OCGA § 40-5-67.1(d), and the refusal to submit to a breath test may be admitted into evidence against the suspect at trial. OCGA § 40-6-392(d). Fantasia enumerates as error the admission of his breath-test results on the ground that OCGA § 40-6-392(d) violates his State constitutional right against self-incrimination. See Art. I, Sec. I, Par. XVI of the Georgia Constitution of 1983. He contends that the statutory scheme of allowing a suspect to choose between either submitting to the breath test or refusing to submit to the breath test and then having the refusal admitted into evidence at trial presents no real choice and is the equivalent of compelling a person to perform an act to incriminate himself. 1
Article I, Section I, Par. XVI of the Georgia constitution provides that "[n]o person shall be compelled to give testimony tending in any manner to be self-incriminating." Similar to the right against self-incrimination guaranteed by the Fifth Amendment to the United States Constitution, Georgia's right against self-incrimination is directed towards prohibiting the State's use of coercion or compulsion to be a witness against oneself. Therefore, if there is no State coercion or compulsion, an individual's right against self-incrimination is not implicated. See South Dakota v. Neville, 459 U.S. 553, 562, 564(I), 103 S.Ct. 916, 921-22, 922-23, 74 L.Ed.2d 748 (1983); accord Allen v. State, 254 Ga. 433(1)(a), 330 S.E.2d 588 (1985).
In Keenan v. State, 263 Ga. 569(1), 436 S.E.2d 475 (1993), this Court upheld the validity of OCGA § 40-6-392(d) in the face of Keenan's challenge that the admission at trial of evidence of his refusal to take a State-administered breath test violated his right against self-incrimination. Citing Allen v. State, supra, 254 Ga. at 434(1)(a), 330 S.E.2d 588, we stated:
In Georgia, the [S]tate may constitutionally take a blood sample from a defendant without his consent. [Cit.] Our "Implied Consent Statute" ( [cit.] ) thus grants a suspect an opportunity, not afforded him by our constitution, to refuse to take a blood-alcohol test. [The statute] grant[s], rather than den[ies], a right to a defendant. We agree with the United States Supreme Court's view that neither choice afforded a defendant is "so painful, dangerous, or severe, or so violative of religious beliefs" that no choice actually exists. [South Dakota v. Neville, supra.] We thus find no compulsion on behalf of the [S]tate and no violation of due process.... [Cit.]
We see no reason to distinguish a suspect's refusal to submit to a breath test, which we held in Keenan was not compelled by the State, from a suspect's submission to a breath test. In either case, the suspect has a choice which does not infringe upon his right against self-incrimination. As the United States Supreme Court stated in Neville, supra, 459 U.S. at 564, 103 S.Ct. at 922-23, the choice to submit or refuse to submit to the analysis of one's blood, breath, urine or other bodily substance will not be an easy or pleasant one to make, "[b]ut the criminal process often requires suspects and defendants to make...
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