Love v. State

• Court: Georgia Supreme Court
• Writing for the Court: BENHAM, Chief Justice.
• Citation: Love v. State, 517 S.E.2d 53, 271 Ga. 398 (Ga. 1999)
• Decision Date: 01 June 1999
• Docket Number: No. S99A0509.,S99A0509.
• Parties: LOVE v. The STATE.

517 S.E.2d 53

271 Ga. 398

LOVE v. The STATE.

No. S99A0509.

Supreme Court of Georgia.

June 1, 1999.

Reconsideration Denied July 30, 1999.

Clark & Towne, Jessica Ruth Towne, David Edward Clark, Lawrenceville, for appellant.

Gerald N. Blaney, Jr., Solicitor General, Jeffrey Paul Kwiatkowski, Gary S. Vey, Assistant Solicitors, for appellee.

BENHAM, Chief Justice.

Appellant Everette Bryan Love was stopped on I-85 in Gwinnett County for speeding at 11:30 p.m. on May 31, 1996. After approaching appellant's stopped vehicle, the officer arrested appellant for driving under the influence based on the odor of marijuana emanating from appellant's car. Samples of appellant's blood and urine were taken and sent to the Crime Lab for analysis which revealed the presence of marijuana metabolites in appellant's blood and urine. Appellant was charged with driving under the influence of drugs to the extent he was a less safe driver (OCGA § 40-6-391(a)(2)), and driving with marijuana in his blood or urine. OCGA § 40-6-391(a)(6).¹ The trial court denied appellant's motion to quash which was based, in part, on the assertion that OCGA § 40-6-391(a)(6) was unconstitutional. Appellant was convicted of driving with unlawful drugs present in his blood or urine, but the jury was unable to reach a verdict on the charge that appellant was driving under the influence of drugs to the extent it made him a less safe driver. On appeal, appellant renews his attacks on the constitutionality of the statute and sees error in the trial court's denial of his motion to suppress the result of the tests on his blood and urine specimens.

1. Appellant contends the trial court erroneously failed to suppress the results of the tests conducted on his blood and urine because the testing methods had not been approved under the Administrative Procedure Act (APA), OCGA § 50-13-1 et seq., and therefore were not "performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation," as required by OCGA § 40-6-392(a)(1)(A). During its 1997 legislative session, the Georgia General Assembly passed the Forensic Sciences Act, which made the APA inapplicable to the methods of evidence-testing adopted by the GBI's Division of Forensic Sciences. OCGA § 35-3-155. Appellant asserts that the 1997 legislation cannot be applied to his 1996 test results, and asserts that we should overrule the appellate holding in Helmeci v. State, 230 Ga.App. 866, 498 S.E.2d 326 (1998), which authorized the retroactive application of the 1997 legislation.²

While OCGA § 35-3-155 was passed after the commission of the offense for which appellant was tried, it did not inflict a greater punishment than was permitted by the law in effect at the time of the offense; it did not make criminal an act which was innocent when done; it did not change the quality or degree of appellant's offense; it did not require less or different evidence than required at the time of the offense; and it did not deprive appellant of any substantial right or immunity he possessed at the time of the offense. See Todd v. State, 228 Ga. 746, 751-752, 187 S.E.2d 831 (1972). The statute did "`nothing more than admit evidence of a particular kind in a criminal case upon an issue of fact which was not admissible under the rules of evidence as enforced by judicial decisions at the time the offense was committed.' [Cit.]" Id. at 751, 187 S.E.2d 831. Accordingly, OCGA § 35-3-155 does not violate ex post facto constitutional provisions and is applicable to the case at bar. Price v. State, 269 Ga. 222(4), 498 S.E.2d 262 (1998). See also State v. Martin, 266 Ga. 244(3), 466 S.E.2d 216 (1996). The failure to suppress the test results was not error.

2. Appellant contends that OCGA § 40-6-391(a)(6) violates the Equal Protection Clause of both the U.S. and Georgia Constitutions because the statute singles out for punishment unimpaired drivers with low levels of marijuana metabolites in their body fluids, despite the fact that these drivers pose no threat to traffic safety, the purpose of the DUI statute. Appellant contends that there is no rational basis for treating unimpaired drivers with marijuana metabolites differently from other unimpaired drivers.

A statute attacked as unconstitutional is presumed by the judiciary to be constitutional (State v. Brannan, 267 Ga. 315, 317, 477 S.E.2d 575 (1996)) until it is established that the statute "manifestly infringes upon a constitutional provision or violates the rights of the people...." Miller v. State, 266 Ga. 850(2), 472 S.E.2d 74 (1996). An equal protection challenge is assessed under the "rational relationship" test when neither a suspect class nor a fundamental right is affected by the challenged statute. Barnett v. State, 270 Ga. 472, 510 S.E.2d 527 (1999). Since neither the right to drive nor the ingestion of marijuana is a fundamental right and appellant's status as one with a low level of metabolites in his bodily fluids is not a suspect class, the legislative classification created by subsection (a)(6) can withstand constitutional assault "`when the classification is based on rational distinctions and bears a direct and real relation to the legitimate object or purpose of the legislation.' [Cit.]" City of Atlanta v. Watson, 267 Ga. 185(1), 475 S.E.2d 896 (1996).

Before delving into whether there exists the rational relationship between the statute at issue and a legitimate state interest, we must first note that OCGA § 40-6-391(a)(6) does not operate to classify a driver as unlawfully impaired. Impaired driving ability is not an element of driving with unlawful drugs in one's body fluids. Stevenson v. State, 264 Ga. 892(2), 453 S.E.2d 18 (1995). See also Kevinezz v. State, 265 Ga. 78 (2), 454 S.E.2d 441 (1995). Instead, subsection (a)(6) "criminalizes a specific act: driving or being in control of a moving vehicle while there is any amount of marijuana or controlled substance in a person's blood or urine." Stevenson v. State, supra, 264 Ga. 892(2), 453 S.E.2d 18. Whether a driver with metabolites of marijuana in his body fluids was an impaired driver is not an issue when he is prosecuted under subsection (a)(6).³ The constitutional issue appellant presents is whether a statute which criminalizes the act of driving when the driver's body fluids contain marijuana metabolites bears a rational relationship to a legitimate state interest.

Two experts, a forensic toxicologist from the Georgia Bureau of Investigation's Division of Forensic Sciences and a toxicologist/professor at Mercer University's School of Pharmacy, testified at a pre-trial hearing, and the GBI expert testified at trial.⁴ From the experts' testimony, we learn the following general information: metabolites of marijuana can be found in the blood of one who smoked marijuana for a couple of days after the marijuana usage, and are detectable in the urine for two weeks to a month after usage. Marijuana smoke inhaled by one not smoking marijuana ("second-hand smoke") can result in detectable amounts of marijuana metabolites in the inhaler's blood and urine if the inhalation occurred in a smoke-filled, small, crowded space. The tests performed by the GBI on blood and urine specimens—Cloned Enzyme Donor Eminase (CEDIA) and Fluorescence Polarization Eminase (FPIA)—result in a "positive" reading for the presence of marijuana metabolites in the body fluid tested if the metabolites' content is at least 100 nanograms per milliliter in urine-testing, and 25 nanograms per milliliter in blood-testing.⁵ The GBI's Division of Forensic Sciences set these minimum levels in order to exclude the possibility of a positive result from passive inhalation of second-hand marijuana smoke, or from marijuana usage which occurred several weeks before testing. According to the GBI expert, a finding of the minimum level for urine-testing indicates, for most people, marijuana use within the one-half to two days preceding the time the urine specimen was provided. The blood specimen of an infrequent marijuana user (one time per week) will contain the minimum level for a day, and a positive result on both urine and blood specimens indicates recent marijuana use.

Both experts testified that human beings vary in their sensitivity to marijuana. The Mercer professor testified that the "period of intoxication" varies from person to person and the effects of the drug gradually decline over a period of time, with the effects being gone in 24 hours in almost every case. The expert was unable to make a general statement about how long the drug would affect a specific person's driving ability, but the residual effects on an inexperienced marijuana user could affect driving ability. The GBI expert testified that the loss of manual dexterity which results from marijuana usage can last up to 24 hours.

Based on the experts' testimony and the GBI's minimum evidentiary standard, we conclude that a statute which makes it unlawful to drive while marijuana residue is circulating in the driver's body fluids bears a rational relationship to a legitimate state purpose—protection of the public. Through the enactment of a per se prohibition against driving after using marijuana, the General Assembly has acted to shield the public from the potential dangers presented by persons who drive while experiencing the effects of marijuana. In effect, the General Assembly has determined that "there is no level of illicit drug use which can be acceptably combined with driving a vehicle; the established potential for lethal consequences is too great." State v. Phillips, 178 Ariz. 368, 873 P.2d 706, 710 (App.1994). See also People v. Fate, 159 Ill.2d 267, 201 Ill.Dec. 117, 636 N.E.2d 549 (1994) (the flat prohibition against driving with any amount of controlled substance in one's system was a valid exercise of the police power...