State v. Amanda Behney ( 2020 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
August 28, 2020
The Court of Appeals hereby passes the following order:
A20A1444. THE STATE v. BEHNEY.
The Supreme Court has exclusive jurisdiction over “[a]ll cases involving the
construction . . . of the Constitution of the State of Georgia or of the United States
and all cases in which the constitutionality of a law, ordinance, or constitutional
provision has been drawn in question[.]” Ga. Const. of 1983, Art. VI, Sec. VI, Par.
II (1); see Atlanta Independent School System v. Lane, 266 Ga. 657, 657-658 (1) (469
SE2d 22) (1996). In the instant appeal, the State argues that the trial court erred in
finding that the language of the implied consent notice, as codified in OCGA § 40-5-
67.1 (b) (effective July 1, 2017 - April 27, 2019), is facially coercive and
unconstitutional.«SeeV2. 23-25, 29-33» The State argues that because Elliott v. State,
305 Ga. 179 (824 SE2d 265) (2019) did not overrule Olevik v. State, 302 Ga. 228(806 SE2d 505) (2017), the law is already settled that former OCGA § 40-5-67.1 (b)
is not facially coercive.«NT 6-8» Because the State in the instant appeal asserts that
certain other language in the statute is likewise not facially coercive following Elliott,
and it challenges the constitutionality of former OCGA § 40-5-67.1 (b) on grounds
not decided in Olevik, it presents a previously unresolved constitutional question that
was raised and ruled upon in the trial court. Therefore, it appears that jurisdiction
over this appeal may lie in the Supreme Court, despite the fact that the appeal may
ultimately be resolved on other grounds. See Harrison v. Wigington, 269 Ga. 388,
388 (497 SE2d 568) (1998) (“If a constitutional question is raised and ruled on below,
[the Supreme] [C]ourt has exclusive appellate jurisdiction, and this is true, although
upon a consideration of the entire case, [the] [C]ourt determines that a decision upon
such constitutional questions is not necessary to a proper solution of the case, and
makes no decision thereon.”) (citation and punctuation omitted).
As the Supreme Court has the ultimate responsibility for determining appellate
jurisdiction, see Saxton v. Coastal Dialysis & Med. Clinic, 267 Ga. 177, 178 (476
SE2d 587) (1996), this appeal is hereby TRANSFERRED to the Supreme Court for
disposition.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
08/28/2020
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.