State v. Trenton Voyles ( 2020 )

SECOND DIVISION
MILLER, P. J.,
PIPKIN and COLVIN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
June 29, 2020
In the Court of Appeals of Georgia
A18A0771. THE STATE v. VOYLES.
PIPKIN, Judge.
In State v. Voyles, 345 Ga. App. 634 (814 SE2d 767) (2018) (physical
precedent only), this Court reversed the trial court’s denial of the State’s motion to
introduce evidence of Trenton Voyles’ prior driving under the influence (“DUI”)
violations pursuant to a notice of intent filed under OCGA § 24-4-417 and a separate
notice filed under OCGA §§ 24-4-403 and 24-4-404 (b). Voyles filed a petition for
certiorari to the Supreme Court of Georgia, and on July 1 2019, the court granted the
petition, vacated our opinion and remanded the case back to us for reconsideration
in light of Elliott v. State, 205 Ga. 179 (824 SE2d 265) (2019), which held evidence
of a defendant’s refusal to submit to a State-administered breath test may not be
admitted against him or her at a criminal trial. Id. at 223 (IV) (E). See Voyles v. State,
2019 GA LEXIS 464 (July 1, 2019). In light of Elliott, we now affirm to the extent
that the trial court excluded evidence of Voyles’ prior refusal to take a State-
administered breath test but remand to the trial court for further proceedings on the
admissibility of the other prior acts evidence as more fully set forth below.
As set out in our prior opinion, on May 1, 2015, Voyles was arrested and
charged with a violation of OCGA § 40-6-391. The State filed a notice of intent to
introduce evidence of Voyles’ three prior DUI arrests and convictions that occurred
within four years of the May 2015 arrest. During two of the prior incidents, Voyles
submitted to a State-administered blood test, but in the other one, which occurred on
May 15, 2011, he refused to submit to a State-administered breath test. Voyles, 345
Ga. App. at 634. In two of the prior incidents, Voyles entered guilty pleas to DUI and
in the other incident, he pleaded guilty to reckless driving. Id.
After first finding that the evidence of prior offenses “may well have some
relevance,” the trial court denied the State’s request to introduce the evidence of the
three prior arrests on the grounds that the danger of unfair prejudice substantially
outweighed the probative value of the evidence under OCGA § 24-4-403. This Court
reversed, concluding that the probative value of Voyles’ prior DUI arrests
substantially outweighed the prejudice in admitting the evidence, “not the other way
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around[.]” Voyles, 345 Ga. App. at 637. In our analysis, we did not distinguish
between the prior arrests, and we specifically did not consider whether the evidence
that Voyles refused to submit to a State-administered breath test during the May 15,
2011 incident stood on a different footing from the evidence in the other two
incidents where he submitted to a State-administered blood test.
In Olevik v. State, 302 Ga. 228 (806 SE2d 505) (2017), the Supreme Court of
Georgia held that the protection against compelled self-incrimination provided by
Article I, Section I, Paragraph XVI of the Georgia Constitution of 1983 affords a DUI
suspect the right to refuse a State-administered breath test. Subsequently, and after
we issued our decision in Voyles, the Supreme Court of Georgia specifically
addressed the issue of whether a defendant’s refusal to submit to a breath test may be
admitted into evidence at a subsequent criminal trial and squarely held that it may not.
Elliott v. State, 305 Ga. 179, 223 (IV) (E) (824 SE2d 265) (2019). Accordingly, to the
extent the State sought to introduce evidence that Voyles refused to submit to the
State’s breath test, the trial court’s order denying the State’s request must be affirmed.
However, as the special concurrence in Elliott points out, the holdings of
Olevik and Elliott are limited to chemical tests of a driver’s breath, not tests of a
driver’s blood.” (Emphasis in original), 305 Ga. at 224 (Boggs, J, concurring fully
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and specially). In State v. Johnson, 354 Ga. App. 447, 454 (1) (b) (841 SE2d 91)
(2020), this Court also addressed whether Olevik and Elliott prohibited admission of
a suspect’s refusal to consent to blood testing, and held that it did not. Id. Further, this
Court also found that even where the accused has refused to consent to a State-
administered breath test, “evidence of the existence of the arrest and other attendant
circumstances, excluding the evidence rendered inadmissible by Elliott, may be
introduced at . . . trial . . . .” Id. at 453 (1) (a).
Here, the trial court assumed the relevance of the case without specifically
addressing that issue. Because the trial court did not have the benefit of the analysis
of Elliott and Johnson, it did not parse out the evidence and did not conduct the
analysis that a trial court is now required to undergo when faced with both
inadmissible evidence of a suspect’s refusal to take a breath test, and other acts
evidence that may be admissible under OCGA § 24-4-404 or OCGA § 24-4-417. See
Johnson, 354 Ga. App. at 453, 454, 457 (1) (a) & (b) and (2). Further, these
considerations also impact whether the evidence satisfies the requirements of OCGA
§ 24-4-403, i.e., the probative value of the evidence is not substantially outweighed
by its unfair prejudice. We therefore affirm the trial court’s order as to the exclusion
of Voyles’ prior refusal to take a State-administered breath test. We vacate the order
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as to Voyles’ prior consents to blood tests and as to his May 11, 2015 arrest,
references to which should not include Voyles’ refusal to take a breath test, and we
remand the case for further proceedings consistent with this opinion.
Judgment affirmed in part and vacated and remanded in part. Miller, P. J., and
Colvin, J., concur.
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