State v. Marty Dustin Whitman ( 2022 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
June 06, 2022
The Court of Appeals hereby passes the following order:
A22A0489. THE STATE v. WHITMAN.
In the above-styled appeal, the State challenges the trial court’s grant of Marty
D. Whitman’s motion to suppress evidence of his refusal to engage in pre-arrest field
sobriety tests. On appeal, the State argues the trial court erred by suppressing
Whitman’s refusal to undergo such testing when, inter alia, the court improperly
applied Georgia case law, and because field sobriety tests do not violate the right
against self-incrimination under either the federal or state constitutions. But we lack
jurisdiction to consider the state constitutional question presented in this appeal.
Indeed, the Supreme Court of Georgia has exclusive jurisdiction over “all cases
in which the constitutionality of a law, ordinance, or constitutional provision has been
drawn in question.”1Additionally, our Supreme Court has
interpreted this jurisdictional provision to extend only to constitutional
issues . . . that do not involve the application of unquestioned and
unambiguous constitutional provisions or challenges to laws previously
held to be constitutional against the same attack.2
1
Zarate-Martinez v. Echemendia, 299 Ga. 301, 304 (2) (788 SE2d 405) (2016)
(punctuation omitted); accord Fox v. Norfolk S. Corp., 342 Ga. App. 38, 43 (1) (802
SE2d 319) (2017).
2
State v. Davis, 303 Ga. 684, 687 (1) (814 SE2d 701) (2018) (punctuation
omitted); see City of Atlanta v. Columbia Pictures Corp., 218 Ga. 714, 719 (4) (130
SE2d 490) (1963) (explaining that the Supreme Court of Georgia “will never pass
upon constitutional questions unless it clearly appears in the record that the point was
directly and properly made in the [trial] court below and distinctly passed upon by the
Put another way, our Supreme Court has held that
[t]he Court of Appeals has limited jurisdiction to review constitutional
questions. It has jurisdiction over cases that involve the application, in
a general sense, of unquestioned and unambiguous provisions of the
Constitution to a given state of facts and that do not involve construction
of some constitutional provision directly in question and doubtful either
under its own terms or under the decisions of the Supreme Court of
Georgia or the Supreme Court of the United States.3
Here, the Supreme Court of Georgia has not ruled on the precise constitutional
question presented as applied to the facts of this case, i.e., whether the refusal to
engage in pre-arrest field sobriety tests may be used against a defendant at trial
without violating Paragraph XVI of the Georgia Constitution, which provides that
“[n]o person shall be compelled to give testimony tending in any manner to be
self-incriminating.”4
In Keenan v. State,5 the Supreme Court of Georgia quoted this Court’s opinion
in Lankford v. State6 to conclude that a defendant’s pre-arrest refusal to undergo an
alco-sensor test was not a “violation of appellant’s right not to incriminate himself
under the [F]ifth amendment, the Georgia Constitution, or OCGA § 24-9-20, because
he was not in custody at the time the field sobriety test was requested.”7 But Keenan
otherwise made no analysis of the Georgia Constitution, never mentioning Paragraph
trial judge”).
3
Davis, 303 Ga. at 687-88 (1) (punctuation omitted).
4
GA. CONST. art. I, § 1, ¶ XVI.
5
263 Ga. 569 (436 SE2d 475) (1993).
6
204 Ga. App. 405 (419 SE2d 498) (1992).
7
Keenan, 263 Ga. at 571 (2) (punctuation omitted) (quoting Lankford, 204 Ga.
App. at 406 (2)).
XVI, and instead focused the entirety of its analysis on the federal constitution and
OCGA § 24-9-20. In short, it does not appear that the Georgia Constitution was at
issue in Keenan, making this brief mention of it non-binding dicta.8 And therefore the
Supreme Court has neither considered nor explicitly ruled on whether Paragraph XVI
of the Georgia Constitution bars use as evidence at trial of a defendant’s pre-arrest
refusal to undergo an alco-sensor breath test or, by extension, other types of field
sobriety tests (e.g., the horizontal gaze nystagmus, the walk and turn), which are at
issue in this appeal.9
The Supreme Court has recently issued opinions regarding post-arrest refusal
to engage in compelled acts that are intended to gauge a defendant’s level of
intoxication.10 But again, with no clear holding on the issue in Keenan, the Supreme
8
See Alexander v. State, __ Ga. __, __ (3) (870 SE2d 729) (2022) (“[D]icta is
not binding on anyone for any purpose.” (punctuation omitted)); Walker v. State, 290
Ga. 696, 700 (2) n.3 (723 SE2d 894) (2012) (“Dicta is binding on neither the bench
nor the bar[.]”); Zepp v. Brannen, 283 Ga. 395, 397 (658 SE2d 567) (2008)
(explaining that dicta is “a statement in an opinion concerning some rule of law or
legal proposition not necessarily involved nor essential to determination of the case
in hand,” and that courts “are not bound to follow . . . dicta in a prior case [when] the
point now at issue was not fully debated” (citation & punctuation omitted)).
9
But see Aldrich v. State, 220 Ga. 132, 133 (137 SE2d 463) (1964) (holding
Georgia law that required truck driver to drive truck onto scales to assess whether
truck and cargo exceeded the weight and measurements provided by another Georgia
law “would be compelling him to produce evidence tending to incriminate him” in
violation of Paragraph XVI of the Georgia Constitution).
10
See Awad v. State, 313 Ga. 99, 99 (868 SE2d 219) (2022) (“Under the
reasoning of Olevik and Elliott, we hold that the right against compelled
self-incrimination protected by Paragraph XVI prohibits the State from admitting into
evidence a defendant’s refusal to urinate into a collection container as directed by the
State for purposes of providing a urine sample for chemical testing.”); Elliott v. State,
305 Ga. 179, 223 (IV) (E) (824 SE2d 265) (2019) (“[W]e conclude that Paragraph
XVI precludes admission of evidence that a suspect refused to consent to a [post-
arrest] breath test.”); Olevik v. State, 302 Ga. 228, 252 (3) (b) (806 SE2d 505) (2017)
(“Paragraph XVI protects against compelled breath tests and affords individuals a
Court still has not considered whether pre-arrest field sobriety tests are compelled
acts such that the refusal to engage in them may not be used against a defendant at
trial.11 And indeed, the Supreme Court recently granted an application for
interlocutory appeal to answer this very question.12
Because the Supreme Court has not explicitly addressed the particular
constitutional question presented in this appeal, we cannot say that the issue is
unquestioned and unambiguous, and under such circumstances, we lack jurisdiction
to consider it. Thus, we hereby transfer this appeal to the Supreme Court of Georgia.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
06/06/2022
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.
constitutional right to refuse testing.”).
11
But see State v. Bradberry, 357 Ga. App. 60 (849 SE2d 790) (2020) (“We
recognize that the issue before us involves an alco-sensor preliminary breath test,
rather than the type of breathalyzer breath tests involved in Elliott and Olevik.
Nevertheless, we do not find that distinction to be controlling since the evidence
plainly shows that [the defendant] would have been required to perform the
affirmative act of blowing into the alco-sensor device for a sustained period of time.
Because [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.”).
12
See Ammons v. State, Case No. S22I0281, Order (Dec. 9, 2021) (granting
application for interlocutory appeal).