Wessels v. State

• Decision Date: 23 November 1983
• Docket Number: No. 66392,66392
• Citation: 169 Ga.App. 246,312 S.E.2d 361
• Parties: WESSELS v. The STATE.
• Court: Georgia Court of Appeals

Page 361

312 S.E.2d 361

169 Ga.App. 246

WESSELS v. The STATE.

No. 66392.

Court of Appeals of Georgia.

Nov. 23, 1983.

Rehearing Denied Dec. 8, 1983.

Certiorari Denied Jan. 19, 1984.

Larry W. Yarbrough, Marietta, for appellant.

Herbert A. Rivers, Sol., Fred Gary Shelnutt, Asst. Sol., for appellee.

Michael J. Bowers, Atty. Gen., Marion O. Gordon, John C. Walden, Sr. Asst. Attys. Gen., Victoria H. Soto, Asst. Atty. Gen., amici curiae.

POPE, Judge.

On April 24, 1982 Donald Louis Wessels was arrested and charged with various vehicular offenses, among them driving under the influence of alcohol. At the time of his arrest, defendant refused to submit to a chemical test used to determine the alcohol content of his blood. At trial it was stipulated that defendant refused such test after he had been duly informed of his rights under the Implied Consent Statute, OCGA § 40-5-55 (Code Ann. § 68B-306). In his opening argument, the solicitor told the jury that defendant had refused the arresting officer's request for submission to the chemical test. Counsel for defendant objected to the solicitor's remark and moved for mistrial. The trial court overruled this motion and defendant was convicted of D.U.I. and sentenced to 12 months imprisonment. Following the denial of his motion for new trial, defendant brings the present appeal.

1. Defendant enumerates as error the denial of his motion for mistrial arguing in support thereof that the admission of his refusal to submit to the chemical test violated his constitutional right against self-incrimination as guaranteed by Art. I, Sec. 1, Par. XIII of the Constitution of Georgia of 1976 (Code Ann. § 2-113) (now Art. I, Sec. I, Par. XVI, Ga. Const.1983 (Code Ann. § 2-116)). We note initially that the United States Supreme Court has recently addressed the identical issue on the federal level as raised under the Fifth Amendment right against self-incrimination. In South Dakota v. Neville, 459 U.S. ----, ----, 103 S.Ct. 916, 923, 74 L.Ed.2d 748, 759 (1983), wherein the court held "that a refusal to take a blood-alcohol test, after a police officer has lawfully requested it, is not an act coerced by the officer, and thus is not protected by the privilege against self-incrimination."

Applied to the facts of the present appeal, the holding in South Dakota v. Neville is, of course, dispositive of the question. Although defendant correctly argues that the Georgia Constitution affords more protection from self-incrimination than does the United States Constitution, the initial inquiry must be whether he had been compelled or forced to produce the evidence at issue. Our state law differentiates between compelling a criminal defendant to perform an act resulting in production of incriminating evidence and compelling him to submit to a precedure designed to extract such evidence. The former produces inadmissible evidence; the latter is admissible. See Creamer v. State, 229 Ga. 511(3), 192 S.E.2d 350 (1972); State v. Armstead, 152 Ga.App. 56, 262 S.E.2d 233 (1979). We find however, that where the defendant has been properly informed of his rights, the refusal to submit to a blood-alcohol test need not be placed in either of the categories described above. We are in agreement with the Court in South Dakota v. Neville that a criminal defendant's refusal to submit to the test in this situation is not the product of coercion, compulsion or force; rather it is the choice between options provided for by statute. See OCGA § 40-5-55 (Code Ann. § 68B-306). This is not "a case where the State has subtly coerced [defendant] into choosing the option it had no right to compel, rather than offering a true choice. To the contrary, the State wants [defendant] to choose to take the test, for the inference of intoxication arising from a positive blood-alcohol test is far stronger than that arising from a refusal to take the test." South Dakota v. Neville, supra 459 U.S. at ----, 103 S.Ct. at 923, 74 L.Ed.2d at 759.

2. Defendant next contends that evidence of his refusal to submit to the blood-alcohol test is inadmissible because it is irrelevant to the question of guilt or innocence under Johnson v. State, 125 Ga.App. 607(2), 188 S.E.2d 416 (1972). For the following reasons, however, we find it necessary to overrule the holding in Division 2 of Johnson. In the intervening eleven years since the opinion in Johnson, the danger to the public safety posed by the drunk driver has been repeatedly and intensely brought to the awareness of the citizens of Georgia, through the media as well as through recently enacted statutes providing for stricter enforcement of D.U.I. laws and harsher punishment for their infraction. See Ga.L.1983, p. 1000, Sections 12 and 13 (effective September 1, 1983 and now codified as OCGA §§ 40-6-391 and 391.1 (Code Ann. §§ 68A-901 and 68A-2022)). As a result, the public is generally aware of the standard procedures attendant to arrest for this offense, i.e., that chemical tests are administered by law enforcement authorities to ascertain the suspect's level of intoxication. It logically follows that in a trial for the offense of D.U.I., where the state produces no evidence of such test results, the inference raised in the minds of the jurors is that the defendant submitted to the test which resulted in a reading lower than that deemed to show intoxication. To the extent of negation of this inference, evidence of refusal to take the test is indeed relevant and admissible. Further, the defendant may in the course of trial offer explanation for such refusal.

Additionally, we believe our holding, that a refusal to submit to a blood-alcohol test is admissible, to be supported by the legislative history of the applicable statute. The Uniform Traffic Act was adopted by the General Assembly in 1953 (Ga.L.1953, Nov. Sess., p. 556), with Section 47...