State v. Turnquest, S19A0157.

• Court: Supreme Court of Georgia
• Citation: 827 S.E.2d 865
• Decision Date: 06 May 2019
• Parties: The STATE v. TURNQUEST.
• Docket Number: S19A0157.

827 S.E.2d 865

The STATE
v.
TURNQUEST.

S19A0157.

Supreme Court of Georgia.

Decided: May 6, 2019

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Daniel J. Porter, District Attorney, Samuel Richard d'Entremont, A.D.A., Christopher Mark DeNeve, Assistant Solicitor-General, Gwinnett County District Attorney's Office, 75 Langley Drive, Lawrenceville, Georgia 30046, Brian Walton Whiteside, Office of the Gwinnett County Solicitor General, 75 Langley Drive, Decatur, Georgia 30030, for Appellant.

Fakiha Khan, Law Office of Fakiha Khan, P.C., 4411 Suwanee Dam Road, Suite 360, Suwanee, Georgia 30024, Kendra Foster Mitchell, Law Office of Fakiha Khan, P.C., 11340 Lakefield Drive, Suite 200, Johns Creek, Georgia 30097, for Appellee.

Peterson, Justice.

This is another DUI case requiring us to consider the meaning of the Georgia Constitution. In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court imposed on law enforcement a requirement to provide persons in custody with a prophylactic warning of their rights before subjecting those

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persons to interrogation. Today we hold that neither the Georgia right against compelled self-incrimination, the Georgia right to due process, nor a Georgia statute prohibiting compelled self-incrimination requires law enforcement to provide similar warnings to persons arrested for DUI before asking them to submit to a breath test.

In 2017, we reiterated that the Georgia Constitution’s right against compelled self-incrimination is broader in one sense than the similar right protected by the United States Constitution; the Georgia right prohibits the compulsion of incriminating acts and testimony, while the federal right prohibits only the compulsion of testimony. See Olevik v. State, 302 Ga. 228, 235-246 (2) (c), 806 S.E.2d 505 (2017). That holding was based on the language, history, and context of Georgia’s Constitution. Id. And earlier this year, we held that the Georgia Constitution’s right against compelled self-incrimination prohibits the State from introducing evidence of a defendant’s exercise of that right; the federal right is similar in its exclusion of evidence of a defendant’s exercise. See Elliott v. State, 305 Ga. 179, 209–224 (IV), 824 S.E.2d 265 (2019). But our holding in Elliott was not based on federal precedent, which we found unpersuasive; instead, our conclusion was again based on the language, history, and context of Georgia’s Constitution. Id. Today, we are asked to apply those opinions to conclude that a Georgia statute — OCGA § 24-5-506 — and the Georgia Constitution require law enforcement to give Miranda-like warnings (an argument presented because Miranda itself does not apply). After again reviewing the language, history, and context of the Georgia Constitution, we reject that invitation. Nothing in the Georgia Constitution or OCGA § 24-5-506 requires Miranda-style prophylactic warnings before a suspect in custody is asked to submit to a breath test.

In Price v. State, 269 Ga. 222, 498 S.E.2d 262 (1998), we held that the failure to give the appellant " Miranda warnings" rendered evidence regarding field sobriety tests inadmissible because the appellant was in custody when asked to perform the tests. 269 Ga. at 225 (3), 498 S.E.2d 262. But that case was wrongly decided, and because stare decisis considerations do not warrant retaining that precedent to the extent that it is contrary to our conclusion about the meaning of the Georgia Constitution and OCGA § 24-5-506, we vacate the trial court’s order suppressing breath-test results for failure to give Miranda warnings. We remand for the trial court to consider an argument not ruled on below.

1. Facts .

The parties stipulated to the following facts. In March 2017, defendant Stephen Turnquest was involved in a single-vehicle accident. The responding officer arrested Turnquest for DUI. After arresting Turnquest and before asking him to submit to a breath test, the officer read the age-appropriate Georgia implied consent notice pursuant to OCGA § 40-5-67.1 (b) (2) but did not give Miranda warnings. Turnquest provided a breath sample.

Turnquest was charged with DUI less safe, DUI per se, and failure to maintain lane. He filed a motion to exclude the results of the breath test on essentially two grounds. First, Turnquest argued that Miranda warnings must precede a request to perform a chemical breath test because, as we held in Olevik, submitting to a breath test is an incriminating act that the right against compelled self-incrimination, secured by Article I, Section I, Paragraph XVI of the Georgia Constitution of 1983 ("Paragraph XVI"), prevents the State from compelling.¹ Second, Turnquest argued that the test results should be suppressed because the implied consent advisement misled him by stating that if he refused the test, that refusal could be used against him at trial and could affect his driving privileges. The trial court granted the motion on the basis that Miranda warnings must precede an officer’s request for a breath sample from a suspect in custody. In

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reaching this conclusion, the trial court relied on Paragraph XVI, OCGA § 24-5-506 (a) (formerly OCGA § 24-9-20 ), and our decision in Price, as well as several Georgia appellate decisions that we relied on in Price. The State appealed under OCGA § 5-7-1 (a) (4), asking us to overrule Price.

2. Miranda itself does not require suspects in custody to be warned of their constitutional rights before they are asked to submit to a breath test.

Although Turnquest argues that he was entitled to Miranda warnings, he cannot, and does not, rely on Miranda itself for his argument that the results of his breath test must be suppressed. Miranda provides — at least in part as a matter of "safeguard[ing] ... the privilege against self-incrimination" as embodied in the Fifth Amendment to the United States Constitution — that the prosecution may not use any statements stemming from custodial interrogation of the defendant unless the defendant is first informed of certain rights. 384 U.S. at 444, 86 S.Ct. 1602. Specifically, "the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." Id. Miranda does not apply to a request for a breath test, however, because affirmative acts such as submitting to a breath test do not fall within the reach of the right against compelled self-incrimination protected by the Fifth Amendment. See United States v. Wade, 388 U.S. 218, 221-223, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) ; Holt v. United States, 218 U.S. 245, 252-253, 31 S.Ct. 2, 54 L.Ed. 1021 (1910) ; see also Schmerber v. California, 384 U.S. 757, 760-765, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).

3. Neither the Georgia Constitution nor OCGA § 24-5-506 requires suspects in custody to be warned of any constitutional rights before they are asked to submit to a breath test.

Turnquest’s argument thus turns on whether some aspect of Georgia law requires law enforcement to give a suspect in custody Miranda-like warnings before asking the suspect to consent to a breath test. We consider several possible Georgia-law sources for such a requirement. Turnquest explicitly relies on Paragraph XVI in support of his argument that warnings were required. We also consider the due process provision of the Georgia Constitution, found at Article I, Section, I, Paragraph I of the Georgia Constitution of 1983 ("Paragraph I"), given that due process also is implicated in questions of whether incriminating statements or acts were constitutionally acquired by law enforcement and may be at least one basis for the Miranda rule. See Dickerson v. United States, 530 U.S. 428, 433, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000) ("Over time, our cases recognized two constitutional bases for the requirement that a confession be voluntary to be admitted into evidence: the Fifth Amendment right against self-incrimination and the Due Process Clause of the Fourteenth Amendment."). And the trial court relied at least in part on former OCGA § 24-9-20 (a), now OCGA § 24-5-506 (a), so we consider that statute as a possible source, as well. We ultimately conclude that none of these provisions of Georgia law require law enforcement to warn persons in custody of any constitutional rights before asking them to submit to a breath test.

(a) Paragraph XVI does not require that a suspect be warned of his right against compelled self-incrimination or any other constitutional rights before being asked to submit to a breath test.

The Fifth Amendment provides that "[n]o person ... shall be compelled in any criminal case to be a witness against himself[.]" Finding that some compulsion is inherent whenever a suspect is being subjected to custodial interrogation, the United States Supreme Court in Miranda imposed a prophylactic rule that, before a suspect in custody can be questioned, he must be advised of certain constitutional rights, including the right to remain silent. 384 U.S. at 467-472, 86 S.Ct. 1602. But "Georgia constitutional provisions may confer...