Elliott v. State

305 Ga. 179

824 S.E.2d 265

ELLIOTT

v.The STATE.

S18A1204

Supreme Court of Georgia.

Decided: February 18, 2019

Gregory Allen Willis, Willis Law Firm, Jared Thomas Hall, Thomas, Webb & Willis LLC, Atlanta, Attorneys for the Appellant

William Washington Fleenor, Ethan Merritt Makin, Assistant Solicitor, Athens-Clarke County Solicitor General's Office, Kenneth W. Mauldin, District Attorney, Western Judicial Circuit District Attorney's Office, Attorneys for the Appellee

Daniel J. Sabol, Luftman, Heck & Associates LLP, Donald Timothy Huey, Blaise J. Katter, Huey Defense Firm, Attorneys for the Amicus Appellant

Patricia B. Attaway Burton, Deputy Attorney General, Ross Warren Bergethon, Deputy Solicitor-General, David Scott McLaughlin, Paula Khristian Smith, Senior Assistant Attorneys General, Andrew Alan Pinson, Solicitor-General, Christopher M. Carr, Attorney General, Jameson B. Bilsborrow, Assistant Attorney General, Department of Law, Attorneys for the Amicus Appellee

Margaret Ellen Heap, District Attorney, Office of the District Attorney Eastern Judicial Circuit, Joseph Scott Key, Miller & Key, PA, McDonough, William Aubrey Finch, Forsyth County Solicitor General's Office, David Holmes, A.D.A., Cherokee County District Attorney's Office, Samuel Richard d'Entremont, A.D.A., Gwinnett County District Attorney's Office, Gilbert Alexander Crosby, Peter J. Skandalakis, Robert Wright Smith, Jr., Prosecuting Attorney's Council of Georgia, Attorneys for the Neutral Amicus

Peterson, Justice.

The State is prosecuting Andrea Elliott for driving under the influence of alcohol. When Elliott was arrested, she refused to submit to a breath test. Georgia statutes allow the State to use her refusal against her in her criminal trial, and the State has sought to do precisely that. The United States Supreme Court has held that the Fifth Amendment to the United States Constitution does not bar the State from using such a refusal, in part because the Fifth Amendment gives Elliott no right to refuse to act in the first place. But we have held — and hold again today — that the protection against compelled self-incrimination provided by Article I, Section I, Paragraph XVI of the Georgia Constitution does afford the right to refuse such a test. So Elliott argues to us that Paragraph XVI gives her the protection that the Fifth Amendment does not, and thus renders invalid the portions of the statutes allowing her refusal to be admitted against her. We agree.

In Olevik v. State, 302 Ga. 228, 806 S.E.2d 505 (2017), we held that — unlike the Fifth Amendment — the Georgia Constitution’s right against compelled self-incrimination prevents the State from forcing someone to submit to a chemical breath test. Given that holding, and relying on a combination of decisions by this Court and Fifth Amendment decisions of the United States Supreme Court, Elliott argues that assertions of that right cannot be admitted against her. The State argues that we were wrong in Olevik and should overrule it, but also argues that the right — properly understood — does not prohibit the State’s use of refusal evidence against a defendant.¹ We adhere to Olevik, and, after extensive review of the historical record and our case law, conclude that our state constitutional right does prohibit admission of evidence that Elliott refused a breath test.

After a review of the undisputed facts, we begin by reviewing three principles that guide our constitutional interpretation in this case. Turning then to the State’s argument that we should overrule Olevik, a careful application of those interpretive principles leads us to adhere to Olevik . We properly interpreted Paragraph XVI in the light of this Court’s consistent holdings that Paragraph XVI’s materially identical precursors protected defendants from being compelled to perform affirmative acts. We then review the relevant history and case law regarding admission of a defendant’s refusal to act and the drawing of adverse inferences therefrom. We conclude that although the pre-Revolution English common-law right against self-incrimination did not preclude admission of defendants' refusals to incriminate themselves or adverse inferences therefrom, legal developments in the United States and specifically in Georgia in the years leading up to and around the time of the adoption of the 1877 Constitution demonstrate that the original public meaning of the 1877 Constitution’s precursor to Paragraph XVI (the "1877 Provision") did preclude the admission of such evidence. Finding no basis to conclude that the meaning of Paragraph XVI itself as adopted in 1983 is different in that respect, we conclude that the Georgia statute permitting admission of Elliott’s refusal violates Paragraph XVI.

I. Background

The relevant facts are not in dispute. In August 2015, a police officer stopped Elliott after observing her commit several traffic violations, including a failure to maintain her lane. During the stop, Elliott admitted to consuming alcohol earlier that day. After smelling the odor of alcohol and observing several signs of impairment, including several clues during a field sobriety test, the officer arrested Elliott for DUI and other traffic offenses and read her the statutorily mandated implied consent notice. See OCGA § 40-5-67.1 (b).² Elliott replied that she was overwhelmed and unsure of what was happening, so the officer explained why he stopped her, why he asked her to perform field sobriety tests, why he read her the implied consent notice following her arrest, and that a refusal to submit to a state-administered breath test could result in certain consequences, including that her refusal to submit might be offered into evidence against her at trial. Elliott refused to submit to a breath test and was taken to jail. She filed a motion to suppress her refusal to submit to a breath test, claiming that the introduction of that evidence at trial would violate her right against compelled self-incrimination under the Georgia Constitution and Georgia Code. The trial court denied her motion, leading to this appeal.

II. Principles of Georgia constitutional interpretation

Both Elliott’s arguments challenging the denial of her motion to suppress evidence of her refusal and the State’s arguments that we should reconsider our decision in Olevik require us to begin by reviewing some important principles that guide our interpretation of the Georgia Constitution in this case.

We have often explained that 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. But many of the provisions of the Constitution of 1983 first originated in an earlier Georgia constitution; unlike the United States, the State of Georgia has had ten constitutions since declaring independence from Great Britain.³ The meanings of those previous provisions is critical to understanding the meaning they carried at the time they were readopted. See Clarke v. Johnson, 199 Ga. 163, 166, 33 S.E.2d 425 (1945) ("A constitutional provision must be presumed to have been framed and adopted in the light and understanding of prior and existing laws and with reference to them. Constitutions, like statutes, are properly to be expounded in the light of conditions existing at the time of their adoption." (citation and punctuation omitted)). Paragraph XVI first appeared in the Constitution of 1877, and was carried forward without material change into the Constitutions of 1945, 1976, and now our current Constitution of 1983. Our focus on the original public meaning of this provision thus requires us to consider two interpretive principles that arise from the provision’s multi-constitutional history, and a third principle that simply arises from the independent nature of state constitutions.

A. The presumption of constitutional continuity.

Original public meaning is an interpretive principle that we apply to each of our constitutions. See Padelford, Fay & Co. v. Mayor and Aldermen of City of Savannah, 14 Ga. 438, 454 (1854) ("[T]he Constitution, like every other instrument made by men, is to be construed in the sense in which it was understood by the makers of it at the time when they made it . To deny this is to insist that a fraud shall be perpetrated upon those makers or upon some of them." (emphasis in original))⁴ ; see also Olevik, 302 Ga. at 235-236 (2) (c) (i), 806 S.E.2d 505(citing cases). Because the meaning of a previous provision that has been readopted in a new constitution is generally the most important legal context for the meaning of that new provision, and because we accord each of those previous provisions their own original public meanings, 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. See, e.g., Lathrop v. Deal, 301 Ga. 408, 428-432 (III) (B), 801 S.E.2d 867 (2017) (interpreting Art. I, Sec. II, Par. V of Constitution of 1983 in the light of the original meaning of the provision as it first appeared in the Constitution of 1861); Ga. Motor Trucking Assn. v. Ga. Dept. of Revenue, 301 Ga. 354, 366 (2) (B), 801 S.E.2d 9 (2017) (interpreting provision of Constitution of 1983 in the light of the meaning of amendments to the Constitution of 1945 that were carried forward); Smith v. Baptiste, 287 Ga. 23, 24-28 (1), 694 S.E.2d 83 (2010) (considering meaning of 1983 provision in part in the light of the meaning of its predecessor provisions); id. at 32-37 (2) - (3), 694 S.E.2d 83 (Nahmias, J., concurring) (same); Nelms v. Georgian Manor Condo. Assn., 253 Ga. 410, 413 (2), 321 S.E.2d 330 (1984) (considering history of 1877 provision carried...