Rijal v. State
| Decision Date | 23 May 2023 |
| Docket Number | A23A0357 |
| Parties | RIJAL v. THE STATE. |
| Court | Georgia Court of Appeals |
Following trial, a jury convicted Durlav Rijal on one count of driving under the influence of alcohol to the extent that he was a less-safe driver (DUI less-safe)[1] and one count of improperly passing an emergency vehicle in violation of the Spencer Pass Law (a "move-over" violation).[2] On appeal, Rijal contends (1) the traffic stop of his vehicle was unjustified because the evidence fails to show he violated the move-over statute; (2) the trial court erred in admitting his refusal to take a portable breath test; and (3) the trial court erred in denying his claims of ineffective assistance of counsel. For the following reasons, we disagree and affirm.
Viewed in the light most favorable to the jury's verdict,[3] the record shows that around 2:00 a.m. on September 29, 2018, a deputy with the Forsyth County Sheriff's Office came upon a motorist who had pulled over into the right emergency lane on Georgia Highway 400 and appeared to need assistance. Consequently, the deputy drove up behind the motorist and illuminated his own vehicle's rear-facing blue lights. Then, after assisting the motorist the deputy returned to his vehicle to complete some paperwork. As he finished doing so, he observed-in his rear-view mirror-another vehicle approaching quickly in the far right lane. And as the deputy's vehicle began to inch forward to merge back onto the highway, the approaching vehicle stayed in the far right lane, making no attempt to move over despite the deputy's rear-facing blue lights being illuminated and no other traffic prevented him from doing so.
Believing that the passing vehicle had just committed a traffic violation by failing to move over from the right lane when approaching his vehicle, the deputy followed, and a few minutes later, he initiated a traffic stop. Then, after the vehicle pulled over, the deputy approached it, and when the driver lowered his window, the deputy immediately smelled an alcoholic-beverage odor. At that point, the deputy noticed two occupants, and so he asked the driver-now identified by his license as Rijal-to exit the vehicle. Rijal complied, and after exiting his vehicle, the deputy still smelled an alcoholic-beverage odor. The deputy then asked Rijal if he had recently consumed any alcoholic beverages and Rijal replied that he had one beer at around 10:00 p.m. But noticing that Rijal's eyes were bloodshot and his speech was slurred, the deputy had him perform several field-sobriety tests. And when those tests indicated impairment, the deputy asked Rijal to take a portable breath test, but he refused to do so. The deputy then placed Rijal under arrest for DUI less-safe.
Subsequently, the State charged Rijal, via accusation, with one count each of DUI less-safe, improperly passing an emergency vehicle, and driving too fast for conditions.[4] The case ultimately proceeded to trial, in which the State presented the foregoing evidence, and Rijal proffered the testimony of an expert witness (a former police officer), who challenged the validity of several of the field-sobriety tests the deputy conducted during the traffic stop. But at the conclusion of the trial, the jury found Rijal guilty on the charges of DUI-less safe and improperly passing an emergency vehicle.
Rijal later obtained new counsel and filed a motion for new trial, arguing, inter alia, that his trial counsel rendered ineffective assistance. The trial court held a hearing on Rijal's motion, during which his trial counsel testified regarding the representation. After both parties presented their respective arguments, the trial court denied Rijal's motion and later issued an order to that effect. This appeal follows.
1. Rijal contends the traffic stop of his vehicle was unjustified under the Fourth Amendment to the United States Constitution[5] because the evidence failed to show he committed a traffic violation under the plain language of the move-over statute. We disagree.
But first, we need to briefly address Rijal's curious phrasing of this enumeration of error. Specifically, he couches his argument as if the trial court denied a motion to suppress evidence obtained as a result of the traffic stop-even citing to case authority outlining the standard of review of a trial court's order concerning such a motion.[6] But Rijal never filed a motion to suppress, and he does not mention his trial counsel's failure to do so as one of the instances of ineffective assistance. Rather, Rijal essentially argues he did not violate the move-over statute as a matter of law. Nevertheless, this claim must be reviewed under the plain-error standard.[7] In this regard, the Supreme Court of Georgia has held that plain-error review consists of the following four prongs:
First, there must be an error or defect-some sort of deviation from a legal rule-that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant's substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error-discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.[8]
Importantly, satisfying all four prongs of this standard is difficult, "as it should be."[9]Needless to say, we are not required to analyze "all elements of the plain-error test [when] an appellant fails to establish one of them."[10]
Turning to Rijal's specific claim, he contends the uncontradicted evidence shows he did not violate the plain text of the move-over statute. Our analysis, of course, begins with "familiar and binding canons of construction."[11] And in considering the meaning of a statute, our charge is to "presume that the General Assembly meant what it said and said what it meant."[12] So, we must afford the statutory text its plain and ordinary meaning,[13] consider the text contextually,[14] read the text "in its most natural and reasonable way, as an ordinary speaker of the English language would,"[15] and seek to "avoid a construction that makes some language mere surplusage."[16] Needless to say, when the language of a statute is plain and susceptible of only one natural and reasonable construction, "courts must construe the statute accordingly."[17] Bearing these guiding principles in mind, OCGA § 40-6-16 (b) provides as follows:
Here, the evidence shows the deputy parked behind a motorist in need of assistance in the far right emergency lane of Georgia 400 and illuminated his patrol vehicle's rear-facing blue lights. And while still parked, he observed in his rear-view mirror Rijal's vehicle approaching in the right lane. But despite the patrol vehicle's blue lights and the lack of other vehicles which might have made a lane change unsafe, Rijal never moved over but, rather, continued driving in the far right lane (adjacent to the emergency lane), eventually passing the deputy's patrol vehicle as it started to move forward in an effort to merge back onto the highway. Given these circumstances, the deputy's traffic stop of Rijal's vehicle was justified by his reasonable belief that Rijal violated the move-over statute.[18]
Nevertheless, focusing on the language in OCGA § 40-6-16 (b) requiring a motorist to move over when "approaching a stationary authorized emergency vehicle . . .[,]"[19] Rijal claims the video from the patrol vehicle's dash-cam shows that it was inching forward when Rijal's vehicle passes. He then argues that because the uncontradicted evidence shows he passed a moving emergency vehicle rather than a stationary one, he did not violate the plain language of OCGA § 40-6-16 (b), and thus, the deputy's subsequent traffic stop was unlawful. Rijal further contends that Van Auken v. State[20]-which he asserts held that passing a moving emergency vehicle nonetheless violated the move-over statute-ignored the plain language of the statute and should be overruled. We find these arguments unpersuasive.
Rijal is correct that the plain language of OCGA § 40-6-16 (b) is controlling in this case. But in his zeal to call attention to the word "stationary,"[21] he ignores the preceding word "approaching."[22] Significantly, although the plain language of the statute does not criminalize "passing" a "moving" emergency vehicle, it does criminalize "approaching a stationary" emergency vehicle without making a safe effort to "[m]ake a lane change into a lane not adjacent"[23] to that vehicle. Indeed contrary to Rijal's contention, the latter conduct is what we held constituted a violation of the move-over ...
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