Ammons v. State ( 2022 )

SUPREME COURT OF GEORGIA
November 2, 2022
The Honorable Supreme Court met pursuant to adjournment.
The following order was passed:
Upon consideration, the Court has revised the deadline for
motions for reconsideration in this matter. It is ordered that a
motion for reconsideration, if any, including motions submitted via
the Court’s electronic filing system, must be received in the
Clerk’s Office by 2 p.m. on Wednesday, November 9, 2022.
SUPREME COURT OF THE STATE OF GEORGIA
Clerk’s Office, Atlanta
I certify that the above is a true extract from the
minutes of the Supreme Court of Georgia.
Witness my signature and the seal of said court hereto
affixed the day and year last above written.
, Clerk
NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: November 2, 2022
S22A0542. AMMONS v. THE STATE.
BETHEL, Justice.
Mia Ammons is being prosecuted for driving under the
influence of alcohol. She largely refused to cooperate when the state
trooper who pulled her over sought to perform a preliminary breath
test and various field sobriety tests, and she later refused to consent
to a blood test for which no search warrant had been obtained by the
police. She claims that any use of evidence of her refusal to perform
the breath and field sobriety tests violates her right against self-
incrimination under the Georgia Constitution. She similarly argues
that two Georgia statutes that permit evidence of her refusal to
consent to a blood test to be used against her violate the General
Assembly’s constitutional duty to enact laws that protect Georgia
citizens in the full enjoyment of their rights, privileges, and
1
immunities as citizens.
The trial court denied Ammons’s motion to suppress evidence
from the roadside stop, including her refusal to participate in a
number of these tests, concluding that her constitutional arguments
failed. We granted Ammons’s application for interlocutory review of
the trial court’s decision.
As explained below, Ammons had the right to refuse to perform
the preliminary breath test and the field sobriety tests under the
Georgia Constitution, and evidence of her refusals cannot be
introduced at her trial. We also determine that the Georgia
Constitution’s privileges and immunities clause does not bar the
admission of evidence that she refused to consent to a blood test. We
therefore affirm in part and reverse in part the trial court’s denial
of Ammons’s motion to suppress.
1. Background
Ammons was charged with driving under the influence (less
2
safe) pursuant to OCGA § 40-6-391 (a) (1).1 She moved in limine to
suppress evidence from her roadside stop and her interactions with
the trooper, including with regard to her refusal to consent to a
preliminary breath test, field sobriety tests, and a blood test.
The record of the hearing on Ammons’s motion to suppress
shows the following. Just after midnight on July 14, 2018, Ammons
was driving her vehicle on a state highway in Paulding County when
she was stopped by State Trooper Levi Perry because her car did not
have a working light illuminating her license plate. After
approaching Ammons’s car and smelling alcohol on her breath,
Trooper Perry asked Ammons to step out of her car. Ammons did so.
Trooper Perry testified that he “immediately noticed” that Ammons
was “extremely unsteady.” In response to questions from Trooper
Perry, Ammons said that she had consumed alcohol “a few hours
prior” to the stop and that “she had a few beers.” Trooper Perry
1 OCGA § 40-6-391 (a) (1) provides that “[a] person shall not drive or be
in actual physical control of any moving vehicle while . . . [u]nder the influence
of alcohol to the extent that it is less safe for the person to drive . . . .” Ammons
was also charged with a tag light violation (OCGA § 40-8-23) and with failure
to change driver’s license address information (OCGA § 40-5-33).
3
testified that, during their discussion, he noticed that Ammons had
“bloodshot watery eyes,” seemed “withdrawn,” and had slurred
speech.
As their conversation continued, Trooper Perry asked Ammons
if she would provide a breath sample for a preliminary breath test.
She refused. Trooper Perry then asked Ammons to stand with her
back against his patrol car and asked her if she had any medical
conditions. She replied that, other than needing to wear glasses, she
did not. Trooper Perry then directed Ammons to “look straight at
[him] and [to] follow the tip of [his] finger with her eyes only.”
Ammons then did so for a brief period of time. Noting in his
testimony that this was part of a horizontal gaze nystagmus (HGN)
test, Trooper Perry testified that the test showed six out of six clues
that Ammons was impaired.
Trooper Perry then began directing Ammons to perform a
“walk and turn” test, but she refused to participate. Trooper Perry
then arrested Ammons for DUI and read her the Georgia implied
consent warning for suspects over the age of 21 and requested that
4
that she provide a blood sample.2 Ammons refused to answer when
Trooper Perry asked her if she consented.
Trooper Perry testified that both a dashboard camera and a
body camera he was wearing at the time recorded his interactions
with Ammons. Both recordings were admitted at the hearing on the
motion to suppress.
At the hearing, Trooper Perry testified that
[t]he purpose of the field sobriety and advanced roadside
and impairment detection is to determine whether or not
that person is indeed impaired to both give them the
opportunity to counteract any initial suspicion and to . . .
determine what level of impairment there is.
Trooper Perry testified that the standard battery of field sobriety
tests begins with an assessment of the suspect’s medical conditions,
such as recent head trauma or any problems with the suspect’s neck,
back, or legs. Once it has been ascertained that no such conditions
are present, an HGN test is performed, which involves an initial
evaluation of “equal tracking” of the eyes between the “ten and two”
2 Ammons indicated to Trooper Perry that she was 30 years old at the
time.
5
positions followed by three different evaluations: “detection of lack
of smooth pursuit,” “sustained nystagmus at maximum deviation,”
and “onset prior to maximum deviation.” These tests require the
suspect to follow an object, such as the tip of the officer’s finger, with
her eyes for several seconds. The HGN test evaluates whether there
is “involuntary jerking of the eyes either caused by a medical
condition or by impairment.” 3 Trooper Perry testified that the HGN
test requires the suspect’s participation and that “unless there’s
cooperation you can’t perform it.” Following an HGN test, a suspect
is then asked to perform a “walk and turn” test which is used to
determine the suspect’s motor functions. The suspect is then
typically asked to perform a “one-leg stand.”
Following the hearing, the trial court denied Ammons’s motion
to suppress. Ammons moved for reconsideration, and the trial court
entered an amended order denying the motion. In its order, the trial
court determined that Ammons voluntarily performed the HGN test
3 Trooper Perry characterized the HGN test as the “most reliable portion”
of the standard battery of field sobriety tests.
6
and that the results of the test were not obtained in violation of her
rights under the Georgia Constitution. The court also determined
that, under our decision in Keenan v. State, 263 Ga. 569, 571-572 (2)
(436 SE2d 475) (1993), Ammons’s refusal to perform the preliminary
breath test could be admitted into evidence and that her refusal to
perform field sobriety tests did not implicate her rights against self-
incrimination under the Georgia Constitution because she was not
in custody at the time of the refusal, citing Keenan and Long v. State,
271 Ga. App. 565, 567-569 (2) (610 SE2d 74) (2004). Finally, the trial
court determined that, by allowing a defendant’s refusal to consent
to a warrantless blood test as evidence of guilt in a criminal case,
Georgia’s implied consent statutes, OCGA §§ 40-5-67.1 and 40-6-
392, do not violate the Privileges and Immunities Clause, the Due
Process Clause, or the Search and Seizure Clause of the Georgia
Constitution. The same day, the trial court issued a certificate of
immediate review.
Ammons timely filed in this Court an application for
interlocutory review, which we granted. We directed the parties to
7
address only the following questions:
1. Should this Court overrule its holding in [Keenan], that
admission of evidence that a defendant refused a roadside
alco-sensor test does not violate the Georgia
Constitution’s guarantee of the right against compelled
self-incrimination?
2. Does the Georgia Constitution’s guarantee of the right
against compelled self-incrimination apply to field
sobriety tests, such that evidence that the defendant
refused to submit to such tests is inadmissible?
3. Do OCGA §§ 40-5-67.1 or 40-6-392 violate the Georgia
Privileges and Immunities Clause?
Ammons timely appealed. We now address each of these questions
in turn.
2. The Georgia Constitution’s protection against self-
incrimination applies to preliminary breath tests using an alco-
sensor and field sobriety tests that require the cooperation of the
suspect.
Article I, Section I, Paragraph XVI of the Georgia Constitution
(“Paragraph XVI”) provides that “[n]o person shall be compelled to
give testimony tending in any manner to be self-incriminating.” In
Olevik v. State, 302 Ga. 228, 228 (806 SE2d 505) (2017), this Court
held that this provision “applies to more than mere testimony; it also
8
protects us from being forced to perform acts that generate
incriminating evidence.” 4 Olevik specifically recognized that
Paragraph XVI “prohibits law enforcement from compelling a person
suspected of DUI to blow his deep lung air into a breathalyzer” for
purposes of determining his blood alcohol content. Id. at 228-229.
Two years later, in Elliott v. State, 305 Ga. 179, 210 (IV) (824 SE2d
265) (2019), we determined that admission of evidence that the
defendant refused to consent to a chemical breath test likewise
violates the rights protected by Paragraph XVI, noting that
“Paragraph XVI generally prohibits admission of a defendant’s
pretrial refusal to speak or act.” And earlier this year, we recognized
that this protection extended to state-administered urine tests. See
Awad v. State, 313 Ga. 99, 103 (3) (868 SE2d 219) (2022) (“Under
Olevik and Elliott, the right against compelled self-incrimination
4We went on to note in Olevik that
although Paragraph XVI refers only to testimony, its protection
against compelled self-incrimination was long ago construed to
also cover incriminating acts and, thus, is more extensive than the
Supreme Court of the United States’s interpretation of the right
against compelled self-incrimination guaranteed by the Fifth
Amendment.
302 Ga. at 240 (2) (b) (ii).
9
protected by Paragraph XVI prohibits the State from admitting into
evidence a defendant’s refusal to submit to a urine test when doing
so would require a defendant to urinate into a collection container
to generate a sample for chemical testing. This collection method
necessarily requires a defendant to cooperate with the State by
performing an act that generates self-incriminating evidence.”). In
Awad, we noted that, like the chemical breath tests at issue in
Olevik and Elliott, the urine test involved the State “asking the
defendant to affirmatively give the State evidence from the
defendant’s body in a particular manner that is neither natural nor
automatic.” 313 Ga. at 103 (3).
(a) Admission of evidence that a defendant refused to provide a
breath sample for a preliminary breath test using an alco-sensor
violates the Georgia Constitution’s protection against self-
incrimination.
More than two decades before we decided those cases, we
suggested in Keenan that this constitutional protection did not apply
to the type of preliminary breath test Ammons was asked to submit
to in this case. In Keenan, the defendant, who was suspected of
10
driving under the influence, refused to submit to a preliminary
breath test that would alert the officer to the presence of alcohol
(what is sometimes also referred to as an “alco-sensor” test). See 263
Ga. at 569. In that case, over the defendant’s objection, the State
was permitted to introduce evidence of his refusal to undergo the
breath test. See id. at 571 (2). On appeal before this Court, the
defendant argued that the Fifth Amendment to the United States
Constitution barred introduction of evidence regarding his refusal.
See id. This Court held that, because the defendant was not in
custody at the time, Miranda warnings 5 (which had not been given)
were unnecessary, and “evidence of appellant’s refusal to undergo
the alco-sensor test would not be inadmissible as violative of his
constitutional right to remain silent.” (Citation omitted.) Id. After
also determining that the admission of evidence regarding his
refusal did not violate former OCGA § 24-9-20,6 this Court stated
5 See Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694)
(1966).
6Former OCGA § 24-9-20 provided that “[n]o person who is charged in
any criminal proceeding with the commission of any indictable offense or any
11
that “[t]here was no violation of appellant’s right not to incriminate
himself under the [F]ifth [A]mendment, the Georgia Constitution, or
[former] OCGA § 24-9-20, because he was not in custody at the time
the field sobriety test was requested.” (Punctuation omitted;
emphasis supplied.) Id. (quoting Lankford v. State, 204 Ga. App.
405, 406 (2) (419 SE2d 498) (1992)).
That was the first and only mention of the Georgia
Constitution in Keenan. Keenan pointed to no specific provision of
the Georgia Constitution that was implicated by the issues in the
case or that the appellant had argued was violated by the admission
of evidence regarding his refusal to consent to the preliminary alco-
sensor test. See generally id. And Keenan contained no analysis of
any Georgia constitutional provision in support of its apparent
holding. See generally id.offense punishable on summary conviction shall be compellable to give
evidence for or against himself.” That Code section was repealed as part of the
enactment of the current Evidence Code. However, OCGA § 24-5-506 (a) now
provides that “[n]o person who is charged in any criminal proceeding with the
commission of any criminal offense shall be compellable to give evidence for or
against himself or herself.”
12
As noted above, though, in the years since Keenan was decided,
this Court has determined that Paragraph XVI offers a number of
protections to a suspect who refuses to cooperate with police during
a roadside DUI stop. Olevik recognized that Paragraph XVI protects
a suspect from being compelled by the police to perform a chemical
breath test that yielded a measurement of his blood alcohol content.
See Olevik, 302 Ga. at 246 (2). Elliott determined that the suspect’s
refusal to perform the test could not be used against him. See 305
Ga. at 223 (IV). And Awad applied these same protections in the
context of a urine test. See 313 Ga. at 106 (5).
Although we have never expressly overruled Keenan, it is
clearly in tension with our holdings in Olevik, Elliott, and Awad, and
we have already expressed doubts about Keenan’s seeming equation
of the rights protected by former OCGA § 24-9-20 with those secured
by Paragraph XVI and the soundness of that reasoning. See State v.
Turnquest, 305 Ga. 758, 772 (4) (827 SE2d 865) (2019) (“We equated
[former OCGA § 24-9-20] with Paragraph XVI without further
analysis of the constitutional provision (which does not appear to
13
have been raised by the appellant in that case) . . . .”). Moreover, the
Court of Appeals has recently applied Olevik and Elliott to
determine that Paragraph XVI prohibits the State from admitting
evidence of a defendant’s refusal to take the type of preliminary test
Ammons refused here, even though the case before it involved “an
alco-sensor preliminary breath test, rather than the type of
[chemical] breathalyzer breath tests involved in Elliott and Olevik.”
State v. Bradberry, 357 Ga. App. 60, 65-66 (3) (849 SE2d 790) (2020).
The Court of Appeals determined that “[b]ecause [the defendant]
had the right to refuse to provide incriminating evidence by
performing such an affirmative act under Paragraph XVI, the
admission of evidence of his refusal violates the state constitutional
right against self-incrimination.” Id. at 66 (3).
Like the Court of Appeals in Bradberry, we see little distinction
between the preliminary alco-sensor breath test Ammons refused to
take during her roadside stop and the type of chemical breath tests
at issue in Olevik and Elliott (or, for that matter, the urine test in
Awad). Both a preliminary alco-sensor test and a chemical breath
14
test require the defendant to affirmatively blow into a device “for a
sustained period of time.” Bradberry, 357 Ga. App. at 66 (3). And
because the preliminary test detects the presence of alcohol,
evidence generated by the test is plainly incriminating against a
suspect who has consumed alcohol. See id. at 66 (3). See also Olevik,
302 Ga. at 231 (1) (b) (noting that a portable alco-sensor test detects
the presence of alcohol). We thus see little merit in the State’s efforts
to distinguish that test from the ones considered in Olevik and
Elliott. 7
Moreover, stare decisis does not require us to perpetuate
Keenan’s flawed holding.
Under the doctrine of stare decisis, courts generally stand
by their prior decisions, because it promotes the
7 We also note that Keenan wrongly suggested that a suspect’s rights
under Paragraph XVI only come into force in a custodial setting. See 263 Ga.
at 571 (2). As noted above, the affirmative act required by the alco-sensor test,
just like the act required to perform the chemical breath tests discussed in
Olevik and Elliott, plainly generates evidence against the suspect. Although
the refusals at issue in Olevik, Elliott, and Awad all occurred post-arrest,
nothing about the holdings of those cases or our consideration of the rights
protected by Paragraph XVI suggested that those rights only come into force
once the suspect is in custody. And our decision today makes clear that the
rights guaranteed by Paragraph XVI protect a suspect from being compelled to
perform an affirmative act that generates evidence against her, regardless of
whether that act takes place before or after she is placed in custody.
15
evenhanded, predictable, and consistent development of
legal principles, fosters reliance on judicial decisions, and
contributes to the actual and perceived integrity of the
judicial process. Stare decisis, however, is not an
inexorable command. Courts, like individuals, but with
more caution and deliberation, must sometimes
reconsider what has been already carefully considered,
and rectify their own mistakes. In reconsidering our prior
decisions, we must balance the importance of having the
question decided against the importance of having it
decided right. To that end, we have developed a test that
considers the age of precedent, the reliance interests at
stake, the workability of the decision, and, most
importantly, the soundness of its reasoning. The
soundness of a precedent’s reasoning is the most
important factor. We have also said that stare decisis
carries less weight when our prior precedent involved the
interpretation of the Constitution, which is more difficult
than statutory interpretation for the legislative process to
correct. This doesn’t mean that we disregard stare decisis
altogether, though; what it actually means is that the first
stare decisis factor (soundness of reasoning) becomes even
more critical. The more wrong a prior precedent got the
Constitution, the less room there is for the other factors
to preserve it.
(Citations, punctuation, and emphasis omitted.) Olevik, 302 Ga. at
244-245 (2) (c) (iv).
As noted above, we see no plausible distinction between the
breath test at issue in this case and those we considered in Olevik
and Elliott, and we should not strain to find distinctions between
16
Keenan and these more recent decisions where no meaningful ones
exist. Moreover, the final sentence of the discussion in Keenan that
dealt with refusal to consent to an alco-sensor test was the first, and
only, mention of the Georgia Constitution in that opinion. The
opinion never quoted or referred to any specific provision of the
Georgia Constitution, nor did it purport to tie its ruling to the text
or history of any Georgia constitutional provision. In short, to the
extent the statement in Keenan regarding the Georgia Constitution
was even a holding, this Court offered no reasoning to support it.
See Turnquest, 305 Ga. at 771 (4) (rejecting stare decisis as basis for
upholding earlier decision where the Court’s “opinion did not cite,
let alone analyze, any particular Georgia statute or Georgia
constitutional provision in support of its holding”). Moreover, since
that time, our Court has concluded “after extensive review of the
historical record and our case law,” that Paragraph XVI prohibits
the introduction of evidence of a defendant’s refusal to consent to a
breathalyzer test in conjunction with a DUI stop. Elliott, 305 Ga. at
180. Thus, in light of our understanding and detailed explanation of
17
what Paragraph XVI protects, the lone reference in Keenan to the
Georgia Constitution was unsound, “which is the most important
stare decisis consideration, especially in constitutional cases.”
Turnquest, 305 Ga. at 773 (4).
In addition, “[n]one of the remaining stare decisis factors
indicate that we should retain this unfounded decision.” Id. at 744
(4). Keenan was decided 29 years ago, and we have overruled
decisions older than that. See Southall v. State, 300 Ga. 462, 468 (1)
(796 SE2d 261) (2017) (overruling a 45-year-old precedent on
premature motions for new trial); State v. Hudson, 293 Ga. 656, 661-
662 (748 SE2d 910) (2013) (overruling a 38-year-old precedent
regarding when a new post-appeal sentence is unconstitutionally
vindictive); State v. Jackson, 287 Ga. 646, 659-60 (5), (6) (697 SE2d
757) (2010) (overruling a nearly 29-year-old interpretation of the
felony murder statute). Keenan also created none of the reliance
interests of the type normally given weight in stare decisis analysis,
namely those relating to property or contractual rights, and any
reliance interests that may have developed around the practice of
18
introducing evidence of a suspect’s refusal to perform the test
do not outweigh the countervailing interest that all
individuals share in having their constitutional rights
fully protected. If it is clear that a practice is unlawful,
individuals’ interest in its discontinuance clearly
outweighs any law enforcement entitlement to its
persistence. The mere fact that law enforcement may be
made more efficient can never by itself justify disregard
of constitutional rights.
(Citation and punctuation omitted.) Olevik, 302 Ga. at 246 (2) (c)
(iv). Finally, “[t]he remaining factor of workability is not reason
enough to preserve” Keenan. Id. As we discussed in Olevik with
regard to chemical breath tests,
law enforcement may have to consider whether a suspect
has validly waived his right against self-incrimination
under the totality of the circumstances. We recognize that
requiring this determination before administering a
[preliminary] breath test [using an alco-sensor] is more
difficult than simply waiting for an affirmative response
to an officer’s request to perform the test. Id. “But this difficulty is
not reason enough to persist” in Keenan’s error. Id.Consequently, to the extent Keenan purported to issue a
holding on the issues in that case pursuant to the Georgia
Constitution, any such holding is overruled. And because the trial
19
court’s order denying Ammons’s motion to suppress relied in part on
Keenan, we reverse that portion of the trial court’s ruling. 8
(b) The protections of Paragraph XVI apply to field sobriety tests
that require the suspect’s cooperation.
We also answer in the affirmative the second question posed in
this appeal: that is, whether the Georgia Constitution’s guarantee
of the right against compelled self-incrimination applies to field
sobriety tests that require the suspect’s cooperation, such that
evidence that the defendant refused to submit to such tests is
inadmissible. We therefore reverse the trial court’s rulings in regard
8 We note that the decision of the Court of Appeals in Bradberry did not
cite or discuss Keenan and instead simply applied Elliott and Olevik.
We also note that the trial court’s order denying Ammons’s motion to suppress
examined this issue with both Keenan and Bradberry in mind. The trial court
rightly determined at the time that, in light of the fact that Keenan had never
been overruled by this Court, Keenan controlled even though Bradberry
followed our more recent line of precedents, including Olevik and Elliott. See
Ga. Const., Art. VI, Sec. VI, Par. VI (“The decisions of the Supreme Court shall
bind all other courts as precedents.”). See also State v. Stanford, 312 Ga. 707,
710 n.3 (864 SE2d 448) (2021) (noting “the general rule that lower courts must
follow this Court’s precedent until we overrule it”). Although Olevik and Elliott
suggested as much, we commend the trial court in adhering to binding
authority and resisting the temptation afforded by Bradberry. With Keenan as
the controlling authority on the question, its holding could only be dislodged
by this Court, and this opinion should at last clarify that Keenan is no longer
good law as to the issue of whether Paragraph XVI allows a suspect to refuse
to consent to the preliminary breath test and protects that suspect from having
his refusal used against him at trial.
20
to Ammons’s refusal to participate in some of the field sobriety tests
Trooper Perry attempted to perform during the roadside stop.
As with other tests performed by the police during DUI stops,
a field sobriety test is designed to “reveal . . . some other condition
or impairment” of the driver relevant to determining whether he or
she was driving under the influence. Mitchell v. State, 301 Ga. 563,
570-571 (3) (802 SE2d 217) (2017), disapproved on other grounds by
Turnquest, 305 Ga. at 775 (4) n.15. As we noted in Mitchell, “field
sobriety tests may involve specific, unusual maneuvers that are . . .
intended to reveal . . . [s]uch characteristics as unsteady gait, lack
of balance and coordination, impaired speech, lack of memory, or
inability to divide one’s attention . . . .” 301 Ga. at 571 (3). Although
field sobriety tests are not a search within the meaning of the Fourth
Amendment, see id., such tests are clearly designed to generate
incriminating evidence against a person suspected of driving under
the influence.
Moreover, it is clear that the suspect’s cooperation is required
in order to perform the “specific, unusual maneuvers” characteristic
21
of the standard field sobriety tests Trooper Perry sought to perform
here. At the hearing on Ammons’s motion to suppress, Trooper Perry
testified that “unless there’s cooperation you can’t perform [an HGN
test].” Moreover, in its brief, the State notes that
the [walk and turn] and [one-leg stand] test and other
dexterity test[s] that cause a DUI suspect to divide [her]
attention among more than one task, also known as
divided attention tests, enable an officer to better know
whether that suspect is impaired by an intoxicant to the
point of being a less safe driver. These divided attention
tests are revealing as to impairment because a motor
vehicle driver is required to divide his attention among
several tasks at once while driving.
As the Court of Appeals has discussed at length, like the HGN test,
both the walk and turn test and the one-leg stand test plainly
require the suspect to cooperate by performing affirmative acts. See,
e.g., Davis v. State, 358 Ga. App. 832, 835 (856 SE2d 411) (2021)
(noting that, at the request of the officer, the suspect “performed”
the walk and turn test and the one-leg stand); Leggett v. State, 354
Ga. App. 877, 878 (842 SE2d 313) (2020) (noting that the suspect
“could not keep his balance” while performing the walk and turn
test); State v. Culler, 351 Ga. App. 19, 21 (830 SE2d 434) (2019)
22
(noting that the suspect “was able to stand straight, arms at his side,
with one leg raised, and while counting out loud for approximately
23 seconds, during which time he exhibited no problems with his
balance, coordination, or speech” and “ceased performing the test
only when [the officer] directed him to do so”); Oh v. State, 345 Ga.
App. 729, 730-731 (815 SE2d 95) (2018) (noting that the officer
instructed the suspect to perform the walk and turn test by
instructing him to “take nine steps with his arms to his side and
then turn around” and that signs of impairment included taking an
incorrect number of steps, failing to maintain balance, making an
improper turn, and using arms to maintain balance). And such tests
cannot be performed if the suspect is not in a condition to cooperate.
See Olevik, 302 Ga. at 231(1) (b) (noting that the “walk-and-turn and
one-leg-stand tests were not conducted because [the suspect] had
certain physical limitations”); Adams v. State, 344 Ga. App. 159, 168
(4) (809 SE2d 87) (2017) (noting that the officer “chose not to perform
the walk-and-turn and one-leg stand field sobriety tests because [the
suspect] was too unsteady on his feet”); Miller v. State, 343 Ga. App.
23197, 197 (806 SE2d 648) (2017) (noting that because the suspect
informed the officer that “she had hip issues,” the officer
“determined that [the suspect] could not be medically cleared to
perform the one-leg-stand or walk-and-turn evaluations).
The State suggests that this information is merely useful to the
officer in establishing probable cause for an arrest, but information
that is useful for that purpose is also clearly useful to the State in
proving at trial that the defendant violated the DUI statute.
Moreover, while the level of cooperation for each standard field
sobriety test appears to be somewhat different from the chemical
breath tests at issue in Olevik and Elliott and the urine test in Awad,
it is clear that field sobriety tests that require the suspect to
cooperate by performing some affirmative act are covered by the
protections of Paragraph XVI. See Awad, 313 Ga. at 103 (3)
(applying Paragraph XVI to state-administered urine tests and
noting that such tests involved asking the defendant to perform a
task which was “neither natural nor automatic”); Olevik, 302 Ga. at
243-244 (2) (c) (ii) (applying Paragraph XVI to breath tests because,
24
among other reasons, “it is required that the defendant cooperate by
performing an act”). Ammons had the right to refuse to engage in
these tests, and, except with regard to the HGN test, she did refuse.
Her refusal to perform the remaining field sobriety tests cannot be
used against her at trial. See Awad, 313 Ga. at 106 (5); Elliott, 305
Ga. at 223 (IV); Olevik, 302 Ga. at 246 (2). Accordingly, we reverse
that portion of the trial court’s order that reached a contrary result.
(c) We decline the State’s invitation to reconsider Olevik, Elliott,
and Awad and reject the interpretive principles advanced in the
dissent.
Both the State and the dissent argue that the entire basis of
our holdings in Olevik, Elliott, and Awad was flawed and should be
reconsidered in this case. But we see no reason to do so.
First, the dissent rejects long-standing interpretive principles
and replaces them with a too-narrow focus on isolated words
divorced from history and context. This novel approach would ignore
all of our case law on constitutional interpretation before 1983 and
begin anew with 1983 dictionary definitions. This simply is not how
we have ever engaged in constitutional interpretation in Georgia.
25
See, e.g., Elliott, 305 Ga. at 184-187 (II) (B) (detailing historic
interpretive approach involving consideration of judicial
construction of previous constitutions).
Second, no reasonable observer during the drafting and
ratification of the 1983 Constitution would have understood the
provisions of the proposed new constitution to be understood without
reference to the construction of their predecessors. See Select
Committee on Constitutional Revisions, 1977-1981 (“Select
Committee”), Transcript of Meetings, Committee to Revise Article I,
meeting of Subcommittee to Revise Section I, Oct. 4, 1979, p. 69
(noting that the search and seizure clause had “been construed so
many times” and a “tremendous body of law” developed on the words
of that clause that “if we change much of that we’re going to open a
complete new field”); id. at 97 (noting that the committee would
“open up a keg of worms” if it “monkey[ed] with” the double jeopardy
clause); id. at 103-106 (notwithstanding members’ uncertainty about
meaning of phrase “corruption of blood,” Justice Bowles noted that
the phrase had been defined in case law, and another committee
26
member suggested the phrase remain in the light of that case law);
id. at 51, meeting of Subcommittee on Rights of Persons, Oct. 25,
1979 (Justice Bowles noted “change should be made where change
is necessary but” courts view a change in words as “an intention on
the part of the framers to give it a different meaning from the
meaning that theretofore existed”); id. at 22-29, Nov. 9, 1979,
meeting of Full Committee (one committee member proposed
removing the word “remonstrance” from provision on right to
assemble and petition, but majority of committee voted to keep the
provision as written after argument was made that the alternative
language omitting the word would narrow the right) (cited in Elliott,
305 Ga. at 208-209 (III) (C) (ii)). And the dissent’s proposed new
theory would upend any number of critical legal issues that have
long been understood as well-settled through application of the
interpretive principles summarized in Elliott. See, e.g., Thompson v.
Talmadge, 201 Ga. 867, 885 (2) (41 SE2d 883) (1947) (resolving
Three Governors Controversy in part through application of prior
construction canon).
27
Third, for its principal case law support, the dissent relies
almost exclusively on Drake v. State, 75 Ga. 413 (1885), and its
purported conflict with Day v. State, 63 Ga. 667 (1879). In doing so,
the dissent brushes past the fact that we rejected the dissent’s
reading of Drake in 1889 and then again in 1916, and Drake has
never again been cited for the dissent’s proposition. See Calhoun v.
State, 144 Ga. 679, 680 (87 SE 893) (1916) (rejecting language on
which the dissent relies as dicta and that “an examination of the
facts of the case will show that the actual ruling was that the
constitutional privilege does not prevent the introduction in
evidence or the exhibition to the jury of clothing or any other article
taken from a person accused of crime, where they tend to show his
guilt”); Evans v. State, 106 Ga. 519, 521 (32 SE 659) (1899) (“[A]n
examination of the facts appearing of record in [Drake] will show
that it is really not in conflict with the Day case”).9
9 As an extension of its rejection of Day, the dissent, in its footnote 14,
also calls for this Court to overrule or disapprove 36 cases that followed Day.
Of particular note, this list of cases cited by the dissent includes at least one
decision from each decade, beginning in the 1870s and continuing to the 2020s.
28
Fourth, critical to the dissent is its presumption that our
historical construction of our constitutional protection against
compelled self-incrimination was wrong at the outset, citing one line
from Olevik that if we were construing that provision “in the first
instance, we might conclude” that the Georgia right was the same
as the federal right. 302 Ga. at 235 (2) (c). This ignores our more
extended treatment of the question in Elliott, which – while stopping
short of determining “conclusively that Day was correctly decided”,
see 305 Ga. at 209 – outlined substantial evidence that Day’s holding
was consistent with the original public meaning of the provision
when it was adopted in 1877. See Elliott, 305 Ga. at 195-202 (III)
(B). The dissent fails to engage with any of that analysis.
Finally, the remaining arguments that the dissent puts forth
were all considered at length and unanimously rejected in Elliott
(many of which had already been previously considered and
This chain represents a longstanding and consistently applied body of case law
regarding our state constitution, and the dissent engages in no stare decisis
analysis with regard to whether this Court should discard that line of decisions
even if it began in error.
29
unanimously rejected in Olevik). Because they are not based on any
previously unaddressed theory and do not point to any previously
unconsidered precedent, we see no reason whatsoever to reconsider
them yet again, despite the State’s invitation to do so.
3. Ammons has not met her burden to establish that the
implied-consent statutes violate Article I, Section I, Paragraph VII of
the Georgia Constitution of 1983.
Finally, Ammons contends that, by allowing her refusal to
consent to a blood test to be introduced as evidence at her trial,
Georgia’s implied consent statutes, OCGA §§ 40-5-67.1 (b) and 40-6-
392, violate Article I, Section I, Paragraph VII of the Georgia
Constitution of 1983 (“Paragraph VII”).10 As we understand it, her
theory is that she invoked her right under the Georgia Constitution’s
10 Article I, Section I, Paragraph VII of the Georgia Constitution of 1983
provides that “[a]ll citizens of the United States, resident in this state, are
hereby declared citizens of this state; and it shall be the duty of the General
Assembly to enact such laws as will protect them in the full enjoyment of the
rights, privileges, and immunities due to such citizenship.”
30
Search and Seizure Clause 11 and Due Process Clause 12 to insist that
the police obtain a search warrant or satisfy some other exception to
the warrant requirement before performing the test. And although
our cases construing these provisions do not hold or suggest that a
suspect’s refusal to consent to a blood test cannot be used against
her at trial, she says Paragraph VII prohibits such use, because it
imposes a “duty” on the General Assembly to enact laws that will
protect citizens “in the full enjoyment of the rights, privileges, and
immunities.” Citing dictionary definitions (and little else), she
claims that this language prohibits the General Assembly from
imposing any degree of “burden” on her constitutional rights. In
other words, she reads Paragraph VII to add a significant measure
11 Article I, Section I, Paragraph XIII of the Georgia Constitution
provides that “[t]he right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures shall not be
violated; and no warrant shall issue except upon probable cause supported by
oath or affirmation particularly describing the place or places to be searched
and the persons or things to be seized.”
12 Article I, Section I, Paragraph I of the Georgia Constitution provides
that “[n]o person shall be deprived of life, liberty, or property except by due
process of law.”
31
of extra or prophylactic protection of rights beyond what the
provisions recognizing those rights cover.
We reject this claim. As an initial matter, Ammons’s burden to
establish this claim is a difficult one. We presume that statutes are
constitutional, and before an act of the General Assembly can be
declared unconstitutional, “the conflict between it and the
fundamental law must be clear and palpable and this Court must be
clearly satisfied of its unconstitutionality.” (Citation omitted.) S&S
Towing & Recovery, Ltd. v. Charnota, 309 Ga. 117, 118 (1) (844 SE2d
730) (2020). “Because all presumptions are in favor of the
constitutionality of a statute, the burden is on the party claiming
that the law is unconstitutional to prove it.” (Citation omitted.) Id.
at 119 (1). And Ammons’s task is made all the more difficult because,
to make this argument, she is asserting a novel and quite expansive
construction of a provision of the Georgia Constitution that has
received little attention since it was enacted.
Ammons has not made even the prima facie showing that
would meet her heavy burden. Construing a constitutional
32
provision, especially as an original matter, requires careful
attention to not only the language of the clause in question, but also
its broader legal and historical context, which are the primary
determinants of a text’s meaning. See, e.g., Olevik, 302 Ga. at 236(2) (c) (i) (“We interpret a constitutional provision according to the
original public meaning of its text,” for which we consider both the
text’s “plain and ordinary meaning” and “the broader context in
which that text was enacted” (citation and punctuation omitted)).
This kind of analysis is especially difficult when the language in
question was first enacted long ago and rarely interpreted since,
because those important contextual clues can be more difficult to
unearth, and the ordinary meaning of language can change over
time. But Ammons’s showing with respect to the meaning of
Paragraph VII grapples with none of this difficult analysis. Instead,
she plucks isolated text from the constitutional provision, cites a
single dictionary, and relies on general statements from a handful
of our decisions that do not interpret the relevant constitutional
language. This kind of analysis does not meet the burden required
33
to establish that Paragraph VII has the expansive reach that
Ammons would have us recognize.
Given Ammons’s failure to meet her burden here, we need not
reach any definitive conclusions as to the scope of Paragraph VII.
But we do think it is helpful to provide some explanation of why
Ammons’s claim, as articulated here, fails from the start. A general
review of the legal and historical context relevant to Paragraph VII
helps illustrate the deficiency of Ammons’s theory and offers no
meaningful support for her novel and expansive view of the Georgia
Constitution’s Privileges and Immunities Clause.
In considering the meaning of this clause, we begin by
outlining some principles of constitutional interpretation. As a
starting point,
we interpret the Georgia Constitution according to its
original public meaning. And, of course, the Georgia
Constitution that we interpret today is the Constitution
of 1983; the original public meaning of that Constitution
is the public meaning it had at the time of its ratification
in 1982.
34
Elliott, 305 Ga. at 181 (II). However, where a provision of the current
constitution has been carried forward from a previous constitution,
“we generally presume that a constitutional provision retained from
a previous constitution without material change has retained the
original public meaning that provision had at the time it first
entered a Georgia Constitution, absent some indication to the
contrary.” Id. at 183 (II) (A). See also Lathrop v. Deal, 301 Ga. 408,
428-432 (III) (B) (801 SE2d 867) (2017) (interpreting Article I,
Section II, Paragraph V of the Constitution of 1983 in the light of
the original public meaning of the provision as it first appeared in
the Constitution of 1861).
Paragraph VII finds its roots in the period immediately after
the Civil War. In 1868, to satisfy the conditions set by Congress for
readmission to the Union, Georgia ratified a new constitution. See
Macon & Augusta R. Co. v. Little, 45 Ga. 370, 374-375 (1872) (noting
that formation of a new state constitution and approval of that
constitution by Congress were conditions for Georgia’s
reinstatement to the Union). As directed by Congress, that new
35
constitution had to do two things: “conform[] with the Constitution
of the United States in all respects”; and ensure “that the elective
franchise shall be enjoyed by all persons [male and at least 21 years
old] of whatever race, color, or previous condition.” See First
Reconstruction Act of 1867, § 5 (1867). The resulting Georgia
Constitution of 1868 included the predecessor to Paragraph VII,
which read in full:
All persons born, or naturalized, in the United States, and
resident in this State, are hereby declared citizens of this
State, and no laws shall be made or enforced which shall
abridge the privileges or immunities of citizens of the
United States, or of this State, or deny any person within
its jurisdiction the equal protection of its laws. And it
shall be the duty of the General Assembly, by appropriate
legislation, to protect every person in the due enjoyment
of the rights, privileges[,] and immunities guaranteed in
this Section.
Ga. Const. of 1868, Art. I, Sec. I, Para. II.13
13 We acknowledge that (1) Paragraph VII’s language has changed since
1868, and (2) its affirmative language making it “the duty of the General
Assembly to enact such laws as will protect [citizens] in the full enjoyment of
the rights, privileges, and immunities due to such citizenship” (which remains
similar to the 1868 predecessor of Paragraph VII) is unique, given that it places
an affirmative duty on the legislature rather than restricting the government
from taking certain actions, as, for instance, the language of Section 1 of the
Fourteenth Amendment does. However, Ammons has pointed to nothing
36
One piece of context important for understanding the meaning
of this provision is Section 1 of the Fourteenth Amendment to the
United States Constitution. 14 That provision, in relevant part, is
materially the same as the first two sentences of the predecessor to
Paragraph VII. 15 The United States Supreme Court has construed
this Privileges or Immunities Clause of the Fourteenth Amendment
as a guarantee to all people born or naturalized in the United States,
suggesting that the changes in Paragraph VII’s wording are material to the
question before us in this case or that the language creating a duty on the part
of the General Assembly requires suppression of evidence of her refusal to
consent to a warrantless search.
14 We have recognized that “[w]hen interpreting a provision of our
Constitution that parallels a provision of the United States Constitution, we
should take seriously decisions of the United States Supreme Court that have
interpreted that parallel provision.” Elliott, 305 Ga. at 187 (III) (C). “But we
owe those federal decisions no obedience when interpreting our own
Constitution.” Id. And “any decision about the scope of a provision of the
Georgia Constitution must be ‘rooted in the language, history, and context’ of
that provision.” Id. (quoting Olevik, 302 Ga. at 234 (2) (b) n.3).
15 That language reads as follows: “All persons born or naturalized in the
United States, and subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside. No State shall make or enforce
any law which shall abridge the privileges or immunities of citizens of the
United States . . . .”
This Court has recognized that Section 1 of the Fourteenth Amendment
and the first sentence of Article I, Section I, Paragraph II of the 1868 Georgia
Constitution are “in substance, . . . identical.” White v. Clements, 39 Ga. 232,
269 (1869) (Brown, C.J., concurring). See also ERIC FONER, THE SECOND
FOUNDING: HOW THE CIVIL WAR AND RECONSTRUCTION REMADE THE
CONSTITUTION 90 (2019) (noting that “Georgia copied the wording of Section 1
[of the Fourteenth Amendment] into its state constitution”).
37
including those recently freed from slavery, of citizenship and a
collection of rights (the “privileges or immunities”) attributable to
that status. See McDonald v. City of Chicago, Ill., 561 U. S. 742, 808
(130 SCt 3020, 177 LEd2d 894) (2010) (Thomas, J., concurring). See
also Strauder v. West Virginia, 100 U. S. 303, 306 (25 LE 664) (1879)
(explaining that each of the provisions of Section 1 of the Fourteenth
Amendment had a “common purpose”: “securing to a race recently
emancipated, a race that through many generations had been held
in slavery, all the civil rights” that were enjoyed by white citizens);
Slaughter-House Cases, 83 U. S. 36, 100-01 (21 LE 394) (1872) (“If
under [Article IV of the United States Constitution] equality of
privileges and immunities is secured between citizens of different
States, under the fourteenth amendment the same equality is
secured between citizens of the United States.”).
The United States Supreme Court has construed the collection
of rights protected by the Privileges or Immunities Clause of the
Fourteenth Amendment quite narrowly: it has said that it “protects
only those rights ‘which owe their existence to the Federal
38
government, its National character, its Constitution, or its laws,’”
and “that other fundamental rights — rights that predated the
creation of the Federal Government and that ‘the State governments
were created to establish and secure’ — were not protected.”
McDonald, 561 U. S. at 754 (quoting Slaughter-House Cases, 83 U.
S. at 76, 79). Many judges and legal scholars have criticized this
narrow construction of the Fourteenth Amendment’s Privileges or
Immunities Clause, but those critics contend that the clause
provided for “federal enforcement of constitutionally enumerated
rights against the States,” not just a prohibition against “state-
sponsored discrimination.” See id. at 840-841 (Thomas, J.,
concurring). See also ERIC FONER, THE SECOND FOUNDING: HOW THE
CIVIL WAR AND RECONSTRUCTION REMADE THE CONSTITUTION 73-76
(2019) (arguing that the clause was understood by some proponents
of the Fourteenth Amendment to be the vehicle through which the
rights guaranteed by the Bill of Rights would be applied to the
States). Ammons’s argument that Paragraph VII not only protects
those rights enumerated in the United States or Georgia
39
constitutions, but also enhances or adds to those rights to some
significant degree, is of a different character entirely and finds no
support in either the Fourteenth Amendment’s Privileges or
Immunities Clause or in the debate surrounding its crafting.
Nor does Ammons’s novel construction find support in this
Court’s own contemporaneous construction of the 1868
Constitution’s predecessor to Paragraph VII. In White v. Clements,
39 Ga. 232 (1869), right after the 1868 provision was adopted, this
Court was asked to determine whether a man who had won an
election for public office was ineligible to serve because he was one-
eighth black. Id. at 240. This Court held that the man was eligible
because the predecessor to Paragraph VII made it clear he was a
citizen of Georgia. Id. at 263-264. 16 Pertinent here, we explained that
adopting the predecessor to Paragraph VII meant that the formerly
16The declaration of citizenship for all residents of the state was not idly
made. There were lingering questions after the war about the legal status of
people who were formerly enslaved. See, e.g., FONER at 55 (noting the
“profound, difficult questions arising from the Civil War and the destruction of
slavery,” including “what rights should the former slaves enjoy and who should
enforce them?”).
40
enslaved “are citizens, and ‘citizens’ of this State. . . . This section of
the Constitution of 1868, takes another step — they become citizens
— they grant to themselves the character of citizens.” (Emphasis in
original.) Id. at 259. See also id. at 273 (Brown, C.J., concurring)
(“Whatever may or may not be the privileges and immunities
guaranteed to the colored race, by the Constitution of the . . . United
States and of this State, it cannot be questioned that both
Constitutions make them citizens” (emphasis omitted)). As an early
construction of the predecessor to Paragraph VII, White is a good
indication of the Clause’s original public meaning, and it does not
support Ammons’s reading.
From the context set out above, we can surmise that the
predecessor to Paragraph VII was understood as having an
important role in guaranteeing that those who had been recently
freed from slavery were citizens of Georgia and entitled to the same
rights as other citizens. Even so, much like the scope of the
“privileges or immunities” protected by the Fourteenth Amendment
is subject to debate, the scope of the “rights, privileges, and
41
immunities” protected by Paragraph VII is not entirely clear. But
nothing that we have seen so far suggests that Paragraph VII does
more than guarantee existing, enumerated rights to all citizens of
the United States who reside in Georgia. We do not rule out the
possibility that Paragraph VII does something more than that, but
Ammons has not made that showing here. Her claim that Paragraph
VII requires the suppression of evidence of a refusal to consent to a
warrantless search therefore fails. 17
Judgment affirmed in part and reversed in part. All the
Justices concur, except McMillian and Colvin, JJ., who concur in
part and dissent in part.
17 By holding that Ammons has not carried her burden to show that
Paragraph VII requires the suppression of evidence of a refusal to consent to a
warrantless search, we do not decide that such evidence is necessarily
admissible in every case. Our rules of evidence or other applicable laws may
result in the exclusion of such evidence in a given case. See, e.g., OCGA § 24-
4-403 (“Relevant evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence.”).
42
ELLINGTON, Justice, concurring.
I join fully in the majority opinion and write separately only to
emphasize the limitations of our holding in Division 3. As the
majority notes, although Ammons has not marshalled authorities
sufficient to persuade us that Paragraph VII does more than
guarantee existing, enumerated, rights to all citizens of the United
States who reside in Georgia, we are not ruling out the possibility
that Paragraph VII does do more.
Our jurisprudence on the meaning of the unique clause in
Paragraph VII – “and it shall be the duty of the General Assembly
to enact such laws as will protect them in the full enjoyment of the
rights, privileges, and immunities due to such [Georgia] citizenship”
– is scant. But the people of Georgia saw fit to include this clause in
our constitution, so we cannot brush it aside. And we have in broad
terms recognized Paragraph VII as the source of “the General
Assembly’s affirmative constitutional duty” to protect “the right of
the people to exercise their civil rights[.]” State v. Miller, 260 Ga.
669, 672 (1) (398 SE2d 547) (1990). Future cases may present the
43
opportunity to develop a deeper understanding of the meaning of
“the full enjoyment of the rights, privileges, and immunities” that
citizens enjoy, as well as a better understanding of the affirmative
duty imposed on the General Assembly to protect that enjoyment.
In the present case, however, Ammons has not met her heavy
burden of overcoming the presumption that the statutory
evidentiary rule regarding blood test refusals in DUI cases is
constitutional, so we must reject her Paragraph VII challenge to
OCGA §§ 40-5-67.1 (b) and 40-6-392 (d).
44
PINSON, Justice, concurring.
I concur in the majority opinion, including its faithful
application of this Court’s recent decisions in Olevik v. State, 302 Ga.
228 (806 SE2d 505) (2017), Elliott v. State, 305 Ga. 179 (824 SE2d
265) (2019), and Awad v. State, 313 Ga. 99 (868 SE2d 219) (2022).
Perhaps there is room for debate about whether Olevik and Elliott
were correct that the right against compelled self-incrimination
under the Georgia Constitution protects affirmative acts. But those
decisions plainly control here, and I am quite certain that stare
decisis requires us to follow them. I write separately to explain why.
1. When courts consider whether to adhere to past decisions,
stare decisis is the strong default rule. Some of the reasons for this
rule are practical: applying stare decisis makes a body of law more
stable, predictable, and reliable, and it deters the inefficient and
expensive “endless relitigation” of basic and settled legal rules.
Kimble v. Marvel Entm’t, LLC, 576 U.S. 446, 455 (135 SCt 2401, 192
LEd2d 463) (2015). See also Cobb v. State, 187 Ga. 448, 452 (200 SE
796) (1939) (“The application of the doctrine of stare decisis is
45
essential to the performance of a well-ordered system of
jurisprudence.”). But in my view, stare decisis is rooted most
securely in the rule of law. See State v. Jackson, 287 Ga. 646, 658 (5)
(697 SE2d 757) (2010). In our constitutional structure, courts have
the special duty to say what the law is (as needed to resolve the
controversies that come before us). Once we have decided a disputed
issue of law, following that decision in future cases—treating like
cases alike—promotes a system of equal treatment under the law
rather than one built on “arbitrary discretion.” The Federalist No.
78, at 529 (Alexander Hamilton) (Jacob E. Cooke ed., 1961). And at
a more fundamental level, following a past decision confirms that it
is law, and that even the Court, like any other government actor and
the litigants before us, is bound by it. This is the essence of the rule
of law, and each time we overrule a past decision—choosing not to
follow what our Court has said the law is—we risk chipping away at
its foundation.
Of course, sometimes that’s a risk we must take. Even knowing
the potential cost to the rule of law, courts in every jurisdiction
46
across our country, including this Court, have overruled plenty of
past decisions. That’s because the rule of law can also be
undermined by perpetuating decisions that are obviously and
harmfully wrong. When sticking to such decisions would cause more
damage to the rule of law than correcting course, courts may choose
overruling as the lesser evil. See, e.g., Ellison v. Georgia R.R. &
Banking Co., 87 Ga. 691, 696 (13 SE 809) (1891) (Bleckley, C.J.)
(when encountering “a great and glaring error affecting the current
administration of justice,” the “maxim for a supreme court . . . is not
stare decisis, but fiat justitia ruat coelum [let justice be done, though
the heavens fall]”).
It is not always easy to figure out when a past error is
damaging enough to the rule of law that overruling the decision is
worth the cost. Compare Cook v. State, 313 Ga. 471, 484-506 (870
SE2d 758) (2022) with id. at 508-20 (Peterson, J., dissenting). But
one important threshold question is whether the past decision can
reasonably be understood as doing law. Was the decision
“deliberate,” the product of applying sound and accepted legal
47
principles to reach a reasoned answer to a disputed question, or was
it a “hasty and crude” decision that seems conclusory, arbitrary, or
based on something other than law, like personal preference? Doe v.
Roe, 23 Ga. 82, 87 (1857), overruled on other grounds by Gresham v.
Webb, 29 Ga. 320 (1859).
The first kind of decision—call it the “deliberate” kind—
ordinarily poses little threat to the rule of law, even when it is
arguably wrong in hindsight. Any number of disputed legal
questions are subject to reasonable debate. When one of those
questions is presented to a court, the court’s constitutional role is to
resolve it. If a court reaches that resolution through a decision that
carefully applies sound, generally accepted legal principles, 18 it is
18For example, when a court must address a question of constitutional
or statutory interpretation, we would hope to see some attention paid to the
language and context of that provision to figure out what it meant at the time
it was enacted. See, e.g., McIver v. State, 319 Ga. 109, 116 (1) (875 SE2d 810)
(2022) (considering the “extensive history” of the law of involuntary
manslaughter, including the “structure and history of the [statutory] text and
the broader context in which [it] was enacted, including statutory and
decisional law”); Seals v. State, 311 Ga. 739, 740 (1) (860 SE2d 419) (2021)
(reviewing “the structure and history of the text and [its] broader context,”
including “statutory and decisional law,” to determine the “ordinary meaning”
of statutory language governing whether a case is final and appealable)
48
clear evidence of a proper exercise of the judicial power—that is, that
the court is simply doing the job our Constitution gives it.19 See
Judicial Counsel of Ga. v. Brown & Gallo, LLC, 288 Ga. 294, 297
(702 SE2d 894) (2010) (“The judicial power is that which declares
what law is, and applies it to past transactions and existing cases; it
expounds and judicially administers the law.” (quoting Thompson v.
Talmadge, 201 Ga. 867, 874 (1) (41 SE2d 883) (1947) (cleaned up))).
Thus, recognizing such a decision as law and following it, even in
the face of doubt about whether it was correct as an original matter,
is consistent with the rule of law. See Patterson v. State, 299 Ga.
491, 516 (789 SE2d 175) (2016) (Blackwell, J., dissenting) (arguing
(citations omitted).
19 The judicial power has long been understood to include the power to
“liquidate,” or settle with finality, disputes about the meaning and operation
of written laws. The Federalist No. 37, at 236 (James Madison) (Jacob E. Cooke
ed., 1961) (“All new laws, though penned with the greatest technical skill, and
passed on the fullest and most mature deliberation, are considered as more or
less obscure and equivocal, until their meaning be liquidated and ascertained
by a series of particular discussions and adjudications.”). See also The
Federalist No. 22, at 143-44 (explaining that “[l]aws are a dead letter without
courts to expound and define their true meaning and operation,” and
advocating for a supreme court “to settle and declare in the last resort, an
uniform rule of civil justice” because “[t]here are endless diversities in the
opinions of men.”).
49
that when we “get it wrong” on a question about the meaning of a
statute, “it may be more appropriately left to the General Assembly
to set things right” so long as “we have made our best effort” to apply
“familiar and settled principles of statutory interpretation”). In my
view, if nothing has changed besides the makeup of the court,
overruling those kinds of decisions merely because the new
personnel would come out on the other side of a reasonable debate
ordinarily would do greater harm to the rule of law than leaving
them settled.
The calculus is different for past decisions of the “hasty and
crude” variety. If a past decision ignores or flatly disregards sound,
generally accepted legal principles, or relies only on bald,
unreasoned assertions, or some combination of the above, the
inference that such decisions are proper exercises of the judicial
power grounded in law is much weaker. 20 Following those decisions
20 I would also tend to include in this category past decisions that
“uncritically import” holdings of federal courts into state law. Buckner-Webb v.
State, __ Ga. __, __ (Case No. S21G1281, decided Sept. 20, 2022) (Pinson, J.,
concurring) (quoting Elliott, 305 Ga. at 188 (II) (C)). See also id. (“When we
50
when they are probably wrong poses risks of undermining the rule
of law similar to the risk posed by overruling—that is, it suggests
that courts are relying on arbitrary discretion or personal
preferences rather than following the law that the people, or our
elected representatives, enacted. Our Court has not hesitated to
overrule such decisions. See, e.g., Jackson, 287 Ga. at 653 (3)
(overruling State v. Crane, 247 Ga. 779, 279 S.E.2d 695 (1981), and
noting that the “one-and-a-half page opinion . . . did not consider the
customary legal meaning of ‘cause’ or look to our then-existing case
law interpreting that term,” but instead “baldly asserted” that it
could choose one of two interpretations and picked the defendant-
friendly one “[b]ecause a criminal statute was being interpreted”);
Gilliam v. State, 312 Ga. 60, 63 (860 SE2d 543) (2021) (overruling
decision that took jurisdiction over certain appeals for “judicial
economy,” “ignor[ing] the constitutional parameters of its
jurisdiction without any significant analysis”); State v. Hudson, 293
rely on such federal decisions without making sure the relevant text and
context match up, we risk giving an ‘interpretation’ of Georgia law that is
arbitrary, wrong, or both.”).
51
Ga. 656, 661-62 (748 SE2d 910) (2013) (overruling decision that
“contain[ed] no analysis supporting its adoption of the count-by-
count approach but instead adopt[ed] that approach as though there
were no other alternative” (emphasis in original)).
This distinction just discussed may not be the only thing that
matters to the question whether to overrule a past decision, but in
my view, it serves a kind of gatekeeping function in any stare decisis
analysis. If the past decision in question is unreasoned, or if it
disregards the basic legal principles that courts use to do law, the
argument for overruling is easier to make. See, e.g., Crayton v. State,
298 Ga. 792, 803 (784 SE2d 343) (2016) (Blackwell, J., dissenting)
(disapproving of a holding reached “without any discussion or
analysis whatsoever” and explaining that “[w]e ought not follow
unreasoned precedent without reason”). If a past decision is “not
law,” Doe, 23 Ga. at 86, treat it accordingly. On the other hand, if
the past decision in question is the product of the careful and
deliberate application of sound and accepted legal principles, it
seems to me that the burden on any would-be overrulers is to show
52
something pretty extraordinary to justify the serious harm to the
rule of law that comes from overruling that kind of decision.
2. That brings us to this case. The majority holds that a
person’s right against compelled self-incrimination under the
Georgia Constitution, Ga. Const. of 1983, Art. I, Sec. I., Para. XVI
(“Paragraph XVI”), prevents the State from using that person’s
refusal to perform preliminary breath tests and certain field sobriety
tests against her at trial to suggest an adverse inference of guilt.
That holding follows directly from this Court’s recent decisions in
Olevik v. State, 302 Ga. 228 (806 SE2d 505) (2017), Elliott v. State,
305 Ga. 179 (824 SE2d 265) (2019), and Awad v. State, 313 Ga. 99(868 SE2d 219) (2022). In Olevik and Elliott, we concluded, and then
reaffirmed, that the right against compelled self-incrimination
prevents the State from forcing people to take affirmative acts that
inherently generate incriminating evidence, and we applied that
holding in Awad.
There is perhaps room for debate about whether these past
decisions are correct as an original matter. (This is apparent from
53
the existence of a dissent in this case that engages in that debate.)
But there can be no serious dispute that these decisions—and here
I focus on Olevik and Elliott—are very much the “deliberate” kind
I’ve just described. In Olevik, a unanimous Court considered and
explained in detail the set of objective and well-established legal
principles that formed the framework for analyzing the question
whether Paragraph XVI applied to a chemical breath test. See
Olevik, 302 Ga. at 235-39 (2) (c) (i). The Court then carefully applied
those principles and, after canvassing more than 100 years of
decisional law and constitutional language to do so, concluded that
Paragraph XVI prevents the State from forcing people to take
affirmative acts that inherently generate incriminating evidence. Id.
at 239-41 (2) (c) (ii). Two years later, in Elliott, a unanimous Court
did all of that again in an even more expansive analysis after the
State asked the Court to overrule Olevik, and then reaffirmed its
holding in Olevik. Elliott, 305 Ga. at 181-209 (II-III). The Court then
addressed, in similarly exhaustive fashion, the separate question
whether Paragraph XVI prevents the government from using a
54
person’s refusal to perform protected affirmative acts against her at
trial to suggest an adverse inference of guilt, and concluded that it
did. Id. at 209-21 (IV) (A-D). Whatever one’s views about how to
answer the questions these two decisions addressed as an original
matter, it is not possible to read them and come away thinking that
how they addressed and resolved those questions is anything other
than consistent with the rule of law.
Given the deliberate nature of these decisions, anyone who
seeks to overrule them has to marshal much more than mere
disagreement with their outcome—to me, they need to show in some
way that following them would cause even more serious damage to
the rule of law than overruling them would. The dissent has not
nearly made that case. Although the dissent applies the familiar
four-factor analysis for assessing whether to apply stare decisis, 21 its
21 For what it’s worth, I am not sure that rote application of these four
factors is ever all that helpful to deciding whether stare decisis applies to a
given past decision. Courts apply these factors because we understand that a
overruling a past decision must be supported by something more than just an
argument that it is wrong. See, e.g., Nalls v. State, 304 Ga. 168, 179 (3) (b) (815
SE2d 38) (2018) (considering whether stare decisis factors “counsel[ed] us not
55
arguments reduce to mere disagreements with how those decisions
should have applied the relevant legal principles, hypotheticals that
might pose close questions in the future, a couple of past cases that
are arguably inconsistent with Olevik and Elliott, and the policy
concern that the General Assembly has been “stripped . . . of its
authority to protect the public from dangerous drivers.” 22 This would
to” overrule prior case law even though we concluded it was “incorrectly
decided”). But these factors do little to address the big reason, in my view, for
that understanding: that overruling past decisions risks undermining the rule
of law. The “reliance” and “workability” factors largely address practical
concerns in theory, and they are inherently malleable in practice, allowing
courts to instead raise any number of policy concerns that are more appropriate
for the legislature to address. The “soundness of reasoning” factor might
roughly address the rule-of-law concern if the analysis focused more on the
process and legal framework that undergirds the past decision, but courts more
often use it to restate mere disagreements with how a past court applied
accepted legal principles. And a precedent’s age never actually seems to make
a difference to the analysis. At the least, I agree with my colleagues who have
recognized that the analysis of whether stare decisis applies to a given decision
is not limited to this list of four factors. See Cook, 313 Ga. at 509-10 (Peterson,
J., dissenting).
22 The dissent says that the Court has “stripped” the General Assembly
of authority to protect the public from dangerous drivers. The other way of
stating it is that the Court recognized after careful deliberation that the people
of Georgia ratified a constitutional right that limits the State’s authority to
compel citizens to incriminate themselves through affirmative acts. And of
course, if enough of the people share the policy view that the State should be
allowed to do this in the context of drunk driving, they can amend the Georgia
Constitution to allow the General Assembly to do that. See Elliott, 305 Ga. at
225 (Boggs, J., concurring) (explaining that, if the General Assembly and the
people are unhappy with the meaning of a constitutional provision, they are
free to amend the constitution).
56
be a perfectly fine dissent from Olevik. But it does not come close to
justifying the harm to the rule of law of overruling that unanimous,
carefully reasoned decision just five years later, especially when a
unanimous court has since reaffirmed it, and nothing material to the
legal question has changed—only the Court’s personnel.
For my part, I am satisfied that stare decisis applies to Olevik
and Elliott. I have a lingering question or two about certain aspects
of the reasoning of those decisions, but their holdings are plainly
grounded in careful—indeed, exhaustive—application of sound and
generally accepted legal principles, and I see nothing in the
arguments of the dissent or the parties that suggests following those
decisions has caused or is likely to cause any substantial harm to
the rule of law. 23 For that reason, I concur in the majority’s faithful
23 To avoid being cryptic: my lingering questions have to do with the
Court’s application of the prior-construction canon in those cases. That canon
says that when language is enacted that had previously received an
authoritative construction by a jurisdiction’s court of last resort, that language
is understood according to the prior construction. See Olevik, 302 Ga. at 237(2) (c) (i) (citing Scalia & Garner, Reading Law: The Interpretation of Legal
Texts 322-26 (West 2012)). The Court in Olevik and Elliott rightly explained
that we demand a “consistent and definitive construction” of the old
constitutional language to trigger the presumption that the reenacted
57
application of those decisions here. I am authorized to state that
Justice Warren joins in this concurrence.
language carried forward that construction. Elliott, 305 Ga. at 184 (II) (B). In
applying that rule, the Court marshaled a lot of decisions that together show
a consistent and definitive conclusion that Paragraph XVI protected
affirmative acts. Elliott, 305 Ga. at 202-05 (III) (C) (i). But as far as I can tell,
these decisions did precious little “construction” of the actual language of the
prior versions of Paragraph XVI—that is, they did not seriously engage the
question of what the actual language of the clause meant to the public at the
time it was enacted. Because the rationale behind the prior-construction canon
depends on finding a prior construction of the language that we presume the
people or legislature were aware of and carried forward, I am not sure how
much weight decisions like these deserve in this analysis, or just how any such
absence of meaningful construction bears on the related question whether the
presumption that the past construction is carried forward is rebutted. Id. at
186 n.6 (II) (B) (declining to “articulate precisely when such a presumption may
be rebutted”). But I also can’t say that the Court’s deliberate resolution of these
and other difficult questions of constitutional interpretation in Olevik or Elliott
was unreasonable (much less unreasoned), or that following it risks any kind
of lasting or significant harm to the rule of law.
58
COLVIN, Justice, concurring in part and dissenting in part.
Article I, Section I, Paragraph XVI of the Georgia Constitution
of 1983 (“Paragraph XVI”) provides that “[n]o person shall be
compelled to give testimony tending in any manner to be self-
incriminating.” Ga. Const. of 1983, Art. I, Sec. I, Par. XVI. By its
plain terms, this provision protects only the right against compelled
self-incriminating testimony. Yet we have disregarded this express
textual limitation, construing the constitutional right in a manner
inconsistent with the constitutional text and extending the right to
all compelled self-incriminating acts. I have previously expressed
“grave concerns” about our construction of Paragraph XVI, Awad v.
State, 313 Ga. 99, 107 (868 SE2d 219) (2022) (Colvin, J., concurring),
and the State now squarely asks us to reconsider our expansive
reading of that provision. Because I believe this Court’s
interpretation of Paragraph XVI and its predecessors contradicts
the constitutional text and lacks any persuasive justification, I
would overrule our precedent and clarify that the scope of the
constitutional right is limited to “testimony.” Further, because
59
submitting to, or refusing to submit to, a chemical or field sobriety
test does not require a defendant “to give testimony,” I do not believe
that Paragraph XVI prohibits the State from admitting into
evidence the results of, or refusal to submit to, a state-administered
chemical or field sobriety test. Accordingly, while I concur with
Divisions 1 and 3 of the majority opinion, I dissent with respect to
Division 2.
In explaining the interpretive principles relevant to construing
this State’s Constitution, we have emphasized the need to ascertain
the “original public meaning” of a constitutional provision, that is,
“the meaning the people understood a provision to have at the time
they enacted it.” Olevik v. State, 302 Ga. 228, 235 (2) (c) (i) (806
SE2d 505) (2017). As we have explained, this task requires an
objective inquiry that “consider[s] the plain and ordinary meaning
of the text, viewing it in the context in which it appears and reading
the text in its most natural and reasonable manner.” Id. at 236-237(2) (c) (i). Yet, for most of our history, we have given little
consideration to the plain and ordinary meaning of the text when
60
construing the constitutional right against self-incrimination.
Indeed, in our recent precedent, we have relegated to a footnote
Drake v. State, 75 Ga. 413 (1885), the first case in which we
expressly construed the text of the self-incrimination provision, and
dismissed as irrelevant the question of whether we got it right when
we offered a contrary construction in other decisions following the
1877 Constitution’s ratification. See Elliott v. State, 305 Ga. 179,
203 n.16 (III) (C) (i) (824 SE2d 265) (2019) (disregarding Drake); see
id. at 209 (III) (C) (ii) (“[W]e do not determine conclusively that [Day
v. State, 63 Ga. 667 (1879)] was correctly decided[.]”). See also
Olevik, 302 Ga. at 241 (2) (c) (ii) (assuming arguendo that our early
precedent misread the constitutional text).
If we give any weight at all to the specific language used in the
Constitution, it becomes impossible to conclude that the
constitutional right against self-incrimination extends to all
incriminating acts. The right against self-incrimination first
appeared in Georgia’s 1877 Constitution. At the time, the provision
read: “No person shall be compelled to give testimony tending in any
61
manner to criminate himself.” Ga. Const. of 1877, Art. I, Sec. I, Par.
VI (emphasis supplied). The language of this provision was
incorporated into the 1945 and 1976 Constitutions without change
and was not materially altered when, in 1983, our current
Constitution replaced the outdated phrase “to criminate himself”
with the more modern phrase “to be self-incriminating.” Ga. Const.
of 1945, Art. I, Sec. I, Par. VI; Ga. Const. of 1976, Art. I, Sec. I, Par.
XIII; Ga. Const. of 1983, Art. I, Sec. I, Par. XVI; see Olevik, 302 Ga.
at 239 n.5 (2) (c) (ii) (noting that “criminate” is “merely an archaic
variant of ‘incriminate’”). The constitutional text recognizing a right
against self-incrimination has therefore always limited the scope of
that right to “testimony.”
The meaning of “to give testimony” has not significantly
changed since the phrase first appeared in our 1877 Constitution.
See Olevik, 302 Ga. at 239 n.6 (2) (c) (ii) (“There is no indication that
‘testimony’ had a substantially broader definition in 1877.”). At the
time, Noah Webster defined “testimony” as “[a] solemn declaration
made to establish some fact,” as exemplified by “the evidence of a
62
witness given under oath.” Noah Webster, A Dictionary of the
English Language 434 (1878). John Guerard invoked this ordinary
sense of the word when, at the 1877 constitutional convention, he
introduced the text of the constitutional right against compelled self-
incrimination and explained why it was a necessary addition.
Absent this constitutional guarantee, Guerard explained, “a man
may be subjected to an inquisition, and made to testify against
himself.” Samuel W. Small, A Stenographic Report of the
Proceedings of the Constitutional Convention Held in Atlanta,
Georgia, 1877 94 (Constitution Publishing Company 1877)
(emphasis supplied); see Noah Webster, A Dictionary of the English
Language 226 (1878) (defining “inquisition” as (1) “[i]nquiry;
investigation,” (2) “[j]udicial inquiry,” or (3) “[a] tribunal for
examining and punishing heretics”). See also Olevik, 302 Ga. at 238(2) (c) (i) (“[C]onsidering what the framers of our Constitution
understood the words they selected to mean can be a useful data
point in determining what the words meant to the public at large.”).
I am aware of no evidence suggesting that the public in 1877 would
63
have understood the term “testimony,” as used in the constitutional
self-incrimination provision, to have some technical or particular
idiosyncratic meaning not captured in dictionaries of the time. See
Olevik, 302 Ga. at 239 n.6 (2) (c) (ii) (relying on the 1878 Noah
Webster dictionary definition for the original public meaning of the
word “testimony”). 24
This Court has often referred to Day v. State, 63 Ga. 667 (1879)
as the seminal case construing the constitutional right against self-
incrimination. See, e.g., Olevik, 302 Ga. at 239 (2) (c) (ii). Day,
however, merely suggested that the constitutional right and an
associated common-law right provided related protections:
By the constitution of this state “no person shall be
compelled to give testimony tending in any manner to
criminate himself.” Nor can one, by force, compel another,
against his consent, to put his foot in a shoe-track for the
purpose of using it as evidence against him on the
criminal side of the court, the more especially when the
24 Although the 1877 Constitution no longer governs, the ordinary
meaning of “testimony” has not significantly changed in the intervening years.
In 1982, when the people of Georgia ratified the current Constitution,
“testimony” was defined as “a solemn declaration usu[ally] made orally by a
witness under oath in response to interrogation by a lawyer or authorized
public official” or “firsthand authentication of a fact.” Webster’s Ninth New
Collegiate Dictionary 1219 (1985).
64
person using such force has no lawful warrant or
authority for doing so.
Day, 63 Ga. at 669 (emphasis supplied). Neither this statement nor
Day’s headnote, which stated that “[a] defendant cannot be
compelled to criminate himself by acts or words,” purported to
construe the constitutional provision. Id. at 667 (2). Moreover,
Day’s holding appears to rely in part on the requirement that the
State obtain a “lawful warrant” before obtaining evidence from a
defendant against his will—a requirement that has no basis in the
constitutional self-incrimination provision. Day, 63 Ga. at 669.
Given that “to give testimony” had a clear meaning in 1877, it
is unsurprising that, when first called upon to construe the
constitutional text in Drake, we concluded that the self-
incrimination provision meant exactly what it said. The
constitutional provision declaring that “no person shall be compelled
to give testimony tending in any manner to criminate himself,” we
explained, “means that, when a person is sworn as a witness in a
case, he shall not be compelled to testify to facts that may tend
65
to criminate him.” 25 Drake, 75 Ga. at 414-415 (quoting Ga. Const. of
1877, Art. I, Sec. I, Par. VI) (holding that “[i]t would be a forced
construction” of the constitutional provision “to hold that clothing or
any other article taken from a person accused of crime could not be
given in evidence or exhibited to the jury” (emphasis supplied)). 26
While there may be factual circumstances in which reasonable
minds might differ as to whether the evidence at issue constitutes
“testimony,” the text of the constitutional provision is not consistent
with an interpretation that the constitutional right protects against
any and all compelled self-incriminating “acts.” In concluding
otherwise, this Court has expressly disregarded the specific
language of the self-incrimination provision, relying instead on two
25 Because Day had not construed the constitutional provision, Drake had
no reason to cite, discuss, or distinguish Day.
26 Nine years later, in Rusher v. State, we commented again that it was
“manifest” from “the letter” of the constitutional self-incrimination provision
that it concerned “the giving of testimony by the accused” rather than “evidence
of facts, acts, and declarations known to and detailed by other witnesses.” 94
Ga. 363, 366 (21 SE 593) (1894) (emphasis supplied). We also rejected as
“unsound” an argument “that the spirit of the constitutional provision extends
to anything which a person under accusation, or afterwards accused, is coerced
to do or say out of court before trial, or in court during the trial.” Id. at 366-
367.
66
non-textual inferences: first, because the constitutional right
against self-incrimination derived from the common-law right
against self-incrimination, the constitutional right is identical to the
common-law right; and second, even if our early precedent badly
misinterpreted the constitutional provision, our incorrect
construction became the “original public meaning” of the provision
when it was carried forward into a later constitution without
material change. In my view, neither of these inferences is sound.
Calhoun v. State was the first decision of this Court to conflate
the constitutional and common-law rights based on faulty logic. In
Calhoun, we explained that the common-law privilege had “derived”
from, and had been “uniformly construed” as coextensive with, the
common-law maxim “that no man is bound to accuse himself of any
crime or to furnish any evidence to convict himself of any crime.”
144 Ga. 679, 680 (87 SE 893) (1916). We further explained that this
maxim was the “prototype” of “the constitutional mandate that ‘[n]o
person shall be compelled to give testimony tending in any manner
to criminate himself.’” Id. Then, based on the historical fact that
67
the common-law right was a precursor of the constitutional right,
we leapt to the conclusion that:
The constitutional guaranty protects one from being
compelled to furnish evidence against himself, either in
the form of oral confessions or incriminating admissions
of an involuntary character, or of doing an act against his
will which is incriminating in its nature.
Id. at 680-681 (citing Day v. State, 63 Ga. 667 (1879)). In other
words, Calhoun concluded that the constitutional right was “as
broad as that afforded by the common-law principle from which it is
derived” simply because the two rights were historically associated.
Id. at 680. This does not follow. Calhoun did not analyze the
constitutional language to determine whether the text could be
fairly interpreted as encompassing the full scope of the common-law
right not to be compelled to furnish evidence against oneself. Nor
did it attempt to explain why Drake had erred in construing the
constitutional text as limited to compelled self-incriminating
testimony. 27
27Calhoun is one of several cases in which this Court has ignored Drake’s
construction of the self-incrimination provision as irrelevant to its holding.
68
Although this Court has implicitly endorsed Calhoun’s
reasoning, see Olevik, 302 Ga. at 239-240 (2) (c) (ii), we have never
offered a robust defense of the proposition that the constitutional
right against self-incrimination is identical to the common-law right
from which it derived. I do not dispute that the constitutional right’s
historical predecessor was the common-law right or that the
See, e.g., Elliott, 305 Ga. at 203 n.16 (III) (C) (i) (stating that Drake’s
construction of the constitutional provision, “though sounding like a holding,
was not the actual holding of the case, because the Drake Court held that
taking clothing from a defendant and submitting that clothing to the jury
would not violate the defendant’s constitutional right against compelled self-
incrimination”); Calhoun, 144 Ga. at 681 (“While the headnote in the case of
Drake v. State, supra, restricts the application of the constitutional privilege to
persons sworn as witnesses, an examination of the facts of the case will show
that the actual ruling was that the constitutional privilege does not prevent
the introduction in evidence or the exhibition to the jury of clothing or any
other article taken from a person accused of crime, where they tend to show
his guilt.”); Evans v. State, 106 Ga. 519, 521 (32 SE 659) (1899) (“While the
headnote in the case of Drake v. State, 75 Ga. 413, restricts the application of
the constitutional provision above quoted to persons sworn as witnesses in a
case, an examination of the facts appearing of record in that case will show
that it is really not in conflict with the Day case, or the ruling made in the
present case.”). Drake’s construction of the constitutional provision, however,
was essential to its holding, as it was the only reason the Court gave for
reaching its ultimate conclusion. See S. Georgia Med. Ctr. v. Washington, 269
Ga. 366, 367 (1) (497 SE2d 793) (1998) (“An adjudication on any point within
the issues presented by the case cannot be considered a dictum, and this rule
applies as to all pertinent questions, although only incidentally involved, which
are presented and decided in the regular course of the consideration of the case,
and lead up to the final conclusion, and to any statement in the opinion as to a
matter on which the decision is predicated.” (punctuation omitted)).
69
common law broadly recognized a right not to be compelled to
furnish evidence against oneself by words or acts. See Marshall v.
Riley, 7 Ga. 367, 370-371 (1849) (describing “[t]he maxim of the
Common Law . . . that no man is bound to accuse himself of any
crime, or to furnish any evidence to convict himself of any crime”
(emphasis in original)). But Georgia’s Constitution refers to the
right against being compelled “to give testimony,” not the right
against being compelled “to furnish evidence.” Concluding that the
specific language incorporated into this State’s Constitution has no
impact on the scope of the resulting constitutional right conflicts
with fundamental principles of constitutional interpretation.
Where, as here, the language of the constitutional text differs from
the more expansive language used at common law, we should not
equate the common-law right with the right protected by our
Constitution. 28
28 The only “textual” justification that this Court has offered for
incorporating the entirety of the common-law self-incrimination right into the
Constitution does not withstand scrutiny. We have explained that, “where the
right enshrined in the constitution was one found at common law, that
70
As an alternative basis for construing the constitutional right
against self-incrimination without regard to the Constitution’s text,
this Court has relied on a version of the “prior-construction canon,”
which generally provides that, “[i]f a statute uses words or phrases
that have already received authoritative construction by the
jurisdiction’s court of last resort, . . . they are to be understood
according to that construction.” Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 322 (2012)
(hereinafter “Reading Law”). Adapting that principle for purposes
of constitutional interpretation, we have explained that there is a
presumption that, when a constitutional provision is incorporated
constitutional right is understood with reference to the common law, absent
some clear textual indication to the contrary.” Elliott, 305 Ga. at 212 (IV) (B)
(emphasis supplied). This statement purports to leave open the possibility that
the specific words used in the constitutional text might have some impact on
the scope of the resulting constitutional right. But we have foreclosed that
possibility. As we have explained, “textual differences” in how different states
have constitutionalized the common-law right against self-incrimination (that
is, whether a self-incrimination provision refers to furnishing evidence, giving
testimony, or being a witness) are “understood as not reflecting a difference in
meaning because they all refer to the same common law.” Id. at 196 (III) (B).
In other words, we simply assume that any reference to a common-law right in
the Constitution naturally incorporates the entire common-law right,
regardless of whether one can in fact fairly read the constitutional text as
incorporating the entire common-law right.
71
into a new or amended constitution without material change, a
“consistent and definitive construction” of the constitutional
provision—even if flat out wrong—is carried forward as the meaning
of the new or amended constitution. See Elliott, 305 Ga. at 184 (II)
(B) (“Given th[e] consistent and definitive construction [of the
constitutional self-incrimination provision, Olevik] presumed that
construction was carried forward into the 1983 Constitution.”). See
also Olevik, 302 Ga. at 241 (2) (c) (ii) (“[E]ven if we were wrong
in Day and Calhoun . . . the subsequent ratifications of new
constitutions with the same language are strongly presumed to have
carried forward the interpretation of that language provided
by Day and Calhoun.”).
We first applied a version of this presumption to the self-
incrimination provision in Aldrich v. State, 220 Ga. 132 (137 SE2d
463) (1964). There, we remarked that, “[f]ortunately” for us, we did
not have to wrestle with the constitutional text to determine
“whether or not ‘testimony’ as found in the Constitution embraces
all kinds of evidence.” Id. at 134. Making no mention of Drake’s
72
holding that “testimony” meant “testimony,” we noted that “this
court has many times decided that question by holding that the word
‘testimony’ means all types of evidence.” Id. at 134. Then, we simply
applied a presumption “that the framers of [a] Constitution intend[]
for [an identical constitutional provision carried forward into a new
constitution] to have the meaning theretofore given it by
construction.” Id. at 135. With that, Calhoun’s expansive
construction of the constitutional right against self-incrimination
was incorporated into the 1945 Constitution as the self-
incrimination provision’s definitive interpretation. 29 Later, in
Olevik, we followed similar logic, presuming that Calhoun’s
interpretation of the constitutional right against compelled self-
incrimination was carried forward as the meaning of the 1983
Constitution’s self-incrimination provision. See Olevik, 302 Ga. at
29 Neither Day nor Calhoun purported to construe the specific word
“testimony” (as opposed to the self-incrimination provision as a whole), and the
only decision of this Court to do so was Drake (which held that the word
“testimony” in fact meant “testimony”). Nevertheless, Aldrich concluded that
Day, Calhoun, “and many more decisions of this court had construed the word
‘testimony’ to embrace any evidence when the identical clause containing this
word was written into the 1945 Constitution.” Aldrich, 220 Ga. at 134-135.
73
241 (2) (c) (ii).
To be sure, applying such a presumption has some pragmatic
benefits, making our jobs easier and maintaining consistency in our
rulings. See Elliott, 305 Ga. at 186 (II) (B) (“The presumption
created by a consistent and definitive construction reflects the value
of consistency in the interpretation of legal language.” (punctuation
omitted)). But even those who advocate for the presumption as an
interpretive tool admit that it comes at the potential “cost” of
permanently enshrining into law a high court’s prior incorrect
construction, and that such a consequence should be “avoided when
the application of other sound rules of interpretation overcomes this
canon.” Reading Law at 324. 30
30 It is unclear whether this prior-construction presumption is a
methodologically sound tool for interpreting constitutional text within the
framework this Court has set out for proper constitutional interpretation. We
have said that the Constitution must “be construed in the sense in which it
was understood by the makers of it at the time when they made it,” and that
“the people” who ratified the Constitution “are the ‘makers’ of the Georgia
Constitution.” Olevik, 302 Ga. at 235-236, 238 (2) (c) (i) (emphasis and
punctuation omitted). In other words, the meaning of a constitutional
provision is the meaning that the voters who ratified the Constitution would
ascribe to the provision. See id. at 238 (2) (c) (i) (noting that constitutional
interpretation seeks to “determin[e] what the words meant to the public at
74
This Court’s overriding reliance on the prior-construction
canon in the self-incrimination context is at odds with the
fundamental principle that “[n]o canon of interpretation is absolute”
and “[e]ach may be overcome by the strength of differing principles
that point in other directions.” Id. at 59.31 When it comes to
Paragraph XVI, the prior-construction canon is the only interpretive
principle that favors this Court’s conclusion that the provision
large,” that is, the “citizens who voted on its ratification”). See also Clarke v.
Johnson, 199 Ga. 163, 164 (33 SE2d 425) (1945) (“Constitutions are the result
of popular will, and their words are to be understood ordinarily in the sense
they convey to the popular mind.” (punctuation omitted)). But when the State
in Elliott pointed out that there was no evidence that “the public understood”
our prior construction of the self-incrimination provision “when ratifying the
1983 Constitution,” Elliott, 305 Ga. at 206-207 (III) (C) (ii), this Court had to
redefine the nature of the interpretive inquiry to avoid the logical implications
of the State’s argument. Although we had previously said that the
understanding of the “citizens who voted on [the Constitution’s] ratification”
governed the meaning of the Constitution, Olevik, 302 Ga. at 238 (2) (c) (i), we
criticized the State for focusing on how “citizen[s] understood the particular
meaning of a constitutional provision,” Elliott, 305 Ga. at 207 (III) (C) (ii).
Instead, we said, “it is the understanding of the text by reasonable people
familiar with its legal context that is important.” Elliott, 305 Ga. at 207 (III)
(C) (ii) (emphasis supplied; punctuation omitted). Clearly, however, whether
it is reasonable to assume that a reader of constitutional text will understand
a provision in accordance with this Court’s construction of a materially
identical provision from a prior constitution largely depends upon whose
perspective we adopt—voters at large or well-informed lawyers.
31 Although we have insisted that the prior-construction presumption is
“rebuttable,” we have declined to specify how it might be rebutted. See Elliott,
305 Ga. at 186 & n.6 (II) (B) (“[T]his is not a case that calls us to articulate
precisely when such a presumption may be rebutted.”).
75
applies to all compelled self-incriminating acts. Every other
applicable principle of textual interpretation points strongly in the
opposite direction, including the supremacy-of-text principle, id. at
56 (“The words of a governing text are of paramount concern, and
what they convey in their context, is what the text means.”), the
ordinary-meaning canon, id. at 69 (“Words are to be understood in
their ordinary, everyday meanings—unless the context indicates
that they bear a technical sense.”), and the negative-implication
canon, id. at 107 (“The expression of one thing implicates the
exclusion of others (expression unius est exclusion alterius).”).
As relevant here, the key phrase in Paragraph XVI is “to give
testimony,” and nothing about the textual context in which that
phrase appears—“[n]o person shall be compelled to give testimony
tending in any manner to be self-incriminating”—suggests that the
right protected by Paragraph XVI applies to something other than
“testimony.” Further, the word “testimony” has a commonly
understood meaning that has changed remarkably little since it first
appeared in the Georgia Constitution, and no one contends that the
76
Georgians who ratified Paragraph XVI of the 1983 Constitution
would have understood the term to carry some technical or archaic
sense. See id. at 69 (“Interpreters should not be required to divine
arcane nuances or to discover hidden meanings.”). Finally,
Paragraph XVI’s use of the phrase “to give testimony”—to the
exclusion of other, broader phrases frequently used in connection
with the common-law right against self-incrimination—gives rise to
a negative implication that the scope of Paragraph XVI’s protections
is narrower than the protections afforded by the common law. In
sum, even assuming that the prior-construction canon should be
afforded some weight in interpreting the Paragraph XVI, other
sound principles of interpretation overwhelmingly favor an
interpretation of Paragraph XVI that affords protection only to
compelled self-incriminating “testimony.” An interpretation that
extends the scope of Paragraph XVI to all compelled self-
incriminating “acts” is simply incompatible with the constitutional
text.
As this Court has recognized, stare decisis is neither “a
77
straightjacket,” State v. Jackson, 287 Ga. 646, 647 (697 SE2d 757)
(2010), nor “an inexorable command,” Cook v. State, 313 Ga. 471,
485 (3) (a) (870 SE2d 758) (2022) (citation and punctuation omitted).
In determining whether to overrule a prior erroneous ruling, we
have considered a variety of factors, including “the age of precedent,
the reliance interests at stake, the workability of the decision, and,
most importantly, the soundness of its reasoning.” Gilliam v. State,
312 Ga. 60, 62 (860 SE2d 543) (2021) (citation and punctuation
omitted). Further, “it is well settled that stare decisis applies with
the least force to constitutional precedents” because “it is much
harder for the democratic process to correct or alter our
interpretation of the Constitution than our interpretation of a
statute or regulation.” Id. (citations and punctuation omitted). As
a result, “[t]he more wrong a prior precedent got the Constitution,
the less room there is for the other factors to preserve it.” Id. at 62-
63 (citation and punctuation omitted).
Here, age is the only stare decisis factor that weighs in favor of
retaining our precedent holding that the constitutional right against
78
compelled self-incrimination applies not only to “testimony” but also
to “acts.” Whether one measures from Calhoun or Day, our
erroneous precedent stretches back more than 100 years. That is
undeniably old precedent. But it is not ancient, and this Court is no
stranger to overruling old precedent that is demonstrably wrong.
See, e.g., Frett v. State Farm Employee Workers’ Comp., 309 Ga. 44,
60 (3) (c) (844 SE2d 749) (2020) (overruling 85-year-old statutory
precedent to which stare decisis applied with more force). 32
The remaining stare decisis factors all weigh in favor of
overruling our self-incrimination precedent. Our erroneous
decisions “created no reliance interest of the sort normally given
weight in stare decisis analysis.” Gilliam, 312 Ga. at 63; see Olevik,
302 Ga. at 245 (2) (c) (iv) (“Substantial reliance interests are an
important consideration for precedents involving contract and
property rights, where parties may have acted in conformance with
32 I assume here that our pre-1983 precedents are relevant to our stare
decisis analysis, even though they offered interpretations of self-incrimination
provisions in prior constitutions that are no longer in force. Olevik, our first
decision to definitively construe the 1983 Constitution’s self-incrimination
provision, issued only five years ago.
79
existing legal rules in order to conduct transactions.” (citation and
punctuation omitted)). Further, while overruling our self-
incrimination precedent might negatively impact some people with
pending criminal charges against them, most of those impacts would
not implicate reliance interests: those who were compelled to
perform a self-incriminating act obviously did not rely on our
holdings that they could not be compelled to perform such acts; and
there are presumably few, if any, people currently facing criminal
charges who refused to perform a self-incriminating act because our
holdings led them to believe that their refusal could not be admitted
in evidence against them.
The workability factor also weighs in favor of overruling our
erroneous self-incrimination precedent. Our decisions in this area
demonstrate that we have failed to formulate a non-arbitrary
standard for when a defendant was compelled to engage in a self-
incriminating act. Examples abound. We have characterized Day
as exemplifying an affirmative act because the defendant “was
compelled to place his foot in certain footprints located near the
80
crime scene.” Olevik, 302 Ga. at 241 (2) (c) (iii). Yet, placing his foot
in the footprint could not have required any more than a de minimis
act on the part of the defendant, given that an agent of the State
“took hold of his foot and put it in the track.” Day, 63 Ga. at 669. At
most, what was required of the defendant in Day was that he
maintain his balance while the State “forcibly” moved his body. Id.
at 667 (2).
We have also said that requiring a defendant to “stand up at
trial” so a witness could look at his amputated leg requires an
affirmative act, Olevik, 302 Ga. at 241 (2) (c) (iii) (citing Blackwell v.
State, 67 Ga. 76, 78-79 (1881)), but that requiring a defendant to
“strip to the waist” so police could photograph his tattoos did not
require an affirmative act, id. at 242 (2) (c) (iii) (citing Ingram v.
State, 253 Ga. 622, 634 (7) (323 SE2d 801) (1984)). This makes little
sense, given that the act of stripping is more involved than the act
of standing, and in both cases the evidence obtained was merely a
visual inspection of the defendant, rather than something the State
or the defendant removed from the defendant’s body.
81
In addition, we have described taking dental impressions as a
method of evidence collection that only requires a defendant “to be
present” so evidence can be “taken from [his] body.” Id. at 242 (2) (c)
(iii) (citing State v. Thornton, 253 Ga. 524, 525 (2) (322 SE2d 711)
(1984)). What this ignores, however, is that taking dental
impressions requires significant cooperation on the part of a
defendant, who could easily prevent the State from obtaining a
usable impression by refusing to open his mouth or moving his jaw
during the procedure.
Further, we have held that a defendant performs an “act”
under Paragraph XVI if, “at the time and in the manner directed by
the State,” he “urinate[s] into a collection container to generate a
sample for chemical testing.” Awad, 313 Ga. at 103 (3).33 This is so
even though a defendant held in a jail cell against his will
presumably has not performed a compelled self-incriminating “act”
33 I authored the Awad majority opinion, “faithfully appl[ying] this
Court’s recent precedent interpreting Georgia’s constitutional right against
compelled self-incrimination because the State argued only that its position
was consistent with that precedent and not that the Court should reconsider
it.” Awad, 313 Ga. at 106-107 (Colvin, J., concurring).
82
if he “chooses” to use whatever restroom facilities are provided,
thereby generating a urine sample for chemical testing without
being directed to do so by the State.
Lurking in the record here is yet another self-incrimination
issue that will require this Court to engage in arbitrary line
drawing. Specifically, during the traffic stop here, State Trooper
Levi Perry required Mia Ammons to produce her driver’s license,
which revealed that she had not timely updated her address
information after moving. As a result, Ammons was charged with
violating OCGA § 40-5-33. While Ammons has not argued that
Paragraph XVI prevents a law enforcement officer from requiring a
driver to produce a driver’s license during a traffic stop, we will
inevitably have to confront such an argument if this Court stays the
course with its self-incrimination case law. Perhaps this Court will
hold that, because a driver does not create a driver’s license but
merely provides the license to an officer during a traffic stop, giving
a license to an officer is not “an act that itself generates incriminating
evidence.” Olevik, 302 Ga. at 243 (2) (c) (iii) (emphasis supplied).
83
But if that is the case, another rift in our case law will develop, as
we have said that a person engages in an affirmative act when, at
the direction of a law enforcement officer, he reaches into his pocket
to produce a pistol. See Elliott, 305 Ga. at 203 (III) (C) (i) (citing
Evans, 106 Ga. at 521).
As these examples demonstrate, the rule established by our
precedent—that a defendant’s Paragraph XVI right is violated if he
is compelled “to perform an act that itself generates incriminating
evidence,” Olevik, 302 Ga. at 243 (2) (c) (iii)—cannot be consistently
and non-arbitrarily administered. The workability factor therefore
counsels against retaining our precedent.
The final stare decisis factor—the soundness of our precedent’s
reasoning—strongly favors overruling this Court’s erroneous
interpretations of Paragraph XVI. This is the “most important
factor” and a “critical” one when it comes to whether the stare decisis
analysis favors retaining a prior decision’s interpretation of the
Constitution. Id. at 245 (2) (c) (iv). In concluding that the scope of
the constitutional right against self-incrimination extends to all
84
compelled self-incriminating acts, our recent precedent relied on
older cases, such as Calhoun, that construed the constitutional text
without performing the necessary textual analysis. Unlike Drake,
which reasonably construed the self-incrimination provision as
limited to “testimony” based on the constitutional text’s plain and
ordinary meaning, Calhoun did not purport to analyze the text at
all. Rather, Calhoun fallaciously reasoned that the constitutional
and common-law rights against self-incrimination were identical
because they were historically associated. This sort of atextual
analysis would not pass muster today, nor should it. Yet, it is
Calhoun’s incorrect construction of the constitutional right against
self-incrimination, rather than Drake’s correct one, that this Court
continues to endorse.
Charitably reading our recent precedent, we have implicitly
admitted that Calhoun’s construction of the self-incrimination
provision was incorrect. See Olevik, 302 Ga. at 235 (2) (c) (noting
that we might interpret the constitutional provision differently “[i]f
we were construing Paragraph XVI in the first instance”).
85
Nevertheless, we have relied on a version of the prior-construction
canon to retain our incorrect interpretation of the self-incrimination
provision. As discussed above, our reliance on the prior-construction
canon to the exclusion of competing canons of construction conflicts
with fundamental principles of constitutional interpretation. Every
relevant interpretive principle other than the prior-construction
canon strongly suggests that Calhoun’s interpretation of the self-
incrimination provision was wrong. Accordingly, our precedent
adopting Calhoun’s interpretation as the definitive construction of
Paragraph XVI of the 1983 Constitution is unsound.
As illustrated by this Court’s recent opinions in DUI cases, our
misinterpretation of the constitutional right against self-
incrimination is not without consequence. The General Assembly
may derogate common-law rights by statute, see Holland v.
Caviness, 292 Ga. 332, 337 (737 SE2d 669) (2013), which is just what
it attempted to do in the DUI context by requiring drivers to submit
to chemical tests or face legal consequences for refusing to do so.
See, e.g., OCGA § 40-5-67.1 (c), (d) (describing the circumstances
86
under which a person who submits, or refuses to submit, to a
chemical test will have his or her driver’s license suspended); 40-6-
392 (b) (providing that the results of a chemical analysis of blood-
alcohol concentration can give rise to certain inferences in a civil or
criminal trial); 40-6-392 (d) (providing that a defendant’s refusal to
submit to a chemical analysis can be used as evidence against a
criminal defendant). By improperly elevating a common-law right
to constitutional status, this Court, in my humble opinion,
overstepped its bounds and stripped the General Assembly of its
authority to protect the public from dangerous drivers. See Ga.
Const. of 1983, Art. III, Sec. VI, Par. I (“The General Assembly shall
have the power to make all laws not inconsistent with this
Constitution, and not repugnant to the Constitution of the United
States, which it shall deem necessary and proper for the welfare of
the state.”). Given that the stare decisis factors strongly favor
overruling our erroneous self-incrimination precedent, we should
correct course, clarify that Paragraph XVI applies only to
“testimony,” and relinquish the legislative authority that this Court
87
long ago unconstitutionally assumed.
Accordingly, I would overrule this Court’s precedent in which
we have held that Paragraph XVI of Georgia’s 1983 Constitution
applies to nontestimonial self-incriminating acts, including Olevik,
302 Ga. 228, Elliott, 305 Ga. 179, and Awad, 313 Ga. 99.34 As a
34 I would also disapprove of this Court’s decisions to the extent that they
stated or implied that Paragraph XVI or prior versions of Georgia’s
constitutional right against self-incrimination applied to nontestimonial self-
incriminating acts. See, e.g., Dunbar v. State, 309 Ga. 252 (845 SE2d 607)
(2020); State v. Turnquest, 305 Ga. 758 (827 SE2d 865) (2019); State v. Herrera-
Bustamante, 304 Ga. 259 (818 SE2d 552) (2018); Simpson v. State, 289 Ga. 685(715 SE2d 142) (2011); Quarterman v. State, 282 Ga. 383 (651 SE2d 32) (2007);
Muhammad v. State, 282 Ga. 247 (647 SE2d 560) (2007); Fantasia v. State, 268
Ga. 512 (491 SE2d 318) (1997), overruled on other grounds by Olevik, 302 Ga.
228; Brown v. State, 262 Ga. 833 (426 SE2d 559) (1993); Batton v. State, 260
Ga. 127 (391 SE2d 914) (1990); Green v. State, 260 Ga. 625 (398 SE2d 360)
(1990); Thornton, 253 Ga. 524, overruled on other grounds by Neal v. State,
290 Ga. 563 (722 SE2d 765) (2012); Strong v. State, 231 Ga. 514 (202 SE2d 428)
(1973), overruled on other grounds by Williams v. State, 296 Ga. 817 (771 SE2d
373) (2015); Creamer v. State, 229 Ga. 511 (192 SE2d 350) (1972); Manor v.
State, 225 Ga. 538 (170 SE2d 290) (1969), vacated in part on other
grounds, 408 U. S. 935 (92 SCt 2856, 33 LE2d 750) (1972); Moton v. State, 225
Ga. 401 (169 SE2d 320) (1969); Gunter v. State, 223 Ga. 290 (154 SE2d 608)
(1967); Aldrich, 220 Ga. 132; Foster v. State, 213 Ga. 601 (100 SE2d 426) (1957);
Thomas v. State, 213 Ga. 237 (98 SE2d 548) (1957); Atterberry v. State, 212 Ga.
778 (95 SE2d 787) (1956); Shepherd v. State, 203 Ga. 635 (47 SE2d 860) (1948);
Boyers v. State, 198 Ga. 838 (33 SE2d 251) (1945); McIntyre v. State, 190 Ga.
872 (11 SE2d 5) (1940); Johns v. State, 178 Ga. 676 (173 SE 917)
(1934), overruled on other grounds by Corbin v. State, 211 Ga. 400 (86 SE2d
221) (1955); Herndon v. State, 178 Ga. 832 (174 SE 597) (1934); Rawlings v.
State, 163 Ga. 406 (136 SE 448) (1926); Groce v. State, 148 Ga. 520 (97 SE 525)
(1918); Calhoun, 144 Ga. 679; Elder v. State, 143 Ga. 363 (85 SE 97) (1915);
88
result, I would affirm the trial court’s denial of Ammons’s motion to
suppress evidence of her refusal to perform a preliminary breath
test, the results of her horizontal gaze nystagmus test, and her
refusal to perform other field sobriety tests, including the walk-and-
turn test.
I am authorized to state that Justice McMillian joins this
opinion concurring in part and dissenting in part.
Springer v. State, 121 Ga. 155 (48 SE 907) (1904); Dozier v. State, 107 Ga. 708(33 SE 418) (1899); Evans, 106 Ga. 519; Myers v. State, 97 Ga. 76 (25 SE 252)
(1895); Franklin v. State, 69 Ga. 36 (1882); Blackwell, 67 Ga. 76; Day, 63 Ga.
667.
89