Ammons v. State

880 S.E.2d 544, 315 Ga. 149

• Court: Supreme Court of Georgia
• Decided: November 2, 2022
• Docket: S22A0542
• Status: Published

Opinion

315 Ga. 149 FINAL COPY

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

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

safe) pursuant to OCGA § 40-6-391 (a) (1).1 She moved in limine to

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

2 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

testified that, during their discussion, he noticed that Ammons had

“bloodshot watery eyes,” seemed “withdrawn,” and had slurred

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 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 at 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

protects us from being forced to perform acts that generate

8 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

protected by Paragraph XVI prohibits the State from admitting into

4 We 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) (c) (ii). 9 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

driving under the influence, refused to submit to a preliminary

10 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 warnings5 (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.” Id. at 572 (2). After also

determining that the admission of evidence regarding his refusal did

not violate former OCGA § 24-9-20,6 this Court stated that “[t]here

5 See Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694)

(1966). 6 Former 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 offense punishable on summary conviction shall be compellable to give evidence for or against himself.” That Code section was repealed as part of the

11 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.

As noted above, though, in the years since Keenan was decided,

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 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 302 Ga. at 246 (2) (c) (iv). Elliott determined that the suspect’s

refusal to perform the test could not be used against him. See 305

Ga. at 223 (IV) (E). 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

have been raised by the appellant in that case) . . . .”). Moreover, the

13 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

test require the defendant to affirmatively blow into a device “for a

14 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. 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 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

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 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

Keenan and these more recent decisions where no meaningful ones

exist. Moreover, the final sentence of the discussion in Keenan that

16 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

what Paragraph XVI protects, the lone reference in Keenan to the

Georgia Constitution was unsound, “which is the most important

17 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.” Turnquest,

305 Ga. at 774 (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-

660 (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 introducing evidence of a suspect’s

refusal to perform the test

18 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

court’s order denying Ammons’s motion to suppress relied in part on

19 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

to Ammons’s refusal to participate in some of the field sobriety tests

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. of 1983, 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 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

of the standard field sobriety tests Trooper Perry sought to perform

21 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

[t]he [walk and turn] and [one-leg stand] test[s] 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 [her] 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)

(noting that the suspect “was able to stand straight, arms at his side,

22 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. 197, 197 (806 SE2d 648) (2017) (noting that because

23 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,

among other reasons, “it is required that the defendant cooperate by

24 performing an act” (emphasis omitted)). 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) (E); Olevik, 302 Ga. at 246 (2)

(c) (iv). 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 footnote 34, 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,” 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 long-standing 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 Clause11 and Due Process Clause12 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.” (Emphasis supplied.) 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

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 add a significant measure 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 and

punctuation omitted.) S&S Towing & Recovery 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

and punctuation 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.

32 Ammons has not made even the prima facie showing that

would meet her heavy burden. Construing a constitutional

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 235-

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

33 of our decisions that do not interpret the relevant constitutional

language. This kind of analysis does not meet the burden required

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

34 in 1982.

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 and Augusta R. Co. v. Little, 45 Ga. 370, 374-375 (1) (1872)

(noting that formation of a new state constitution and approval of

that constitution by Congress were conditions for Georgia’s

35 reinstatement to the Union). As directed by Congress, that new

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 to 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, Par. 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

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

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 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 (7) (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 this Privileges or Immunities Clause of the Fourteenth Amendment

as a guarantee to all people born or naturalized in the United States,

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, 561 U. S. 742, 808 (130

SCt 3020, 177 LE2d 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, 100-101 (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 [F]ourteenth [A]mendment 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

38 Fourteenth Amendment quite narrowly: it has said that it “protects

only those rights ‘which owe their existence to the Federal

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).

39 Ammons’s argument that Paragraph VII not only protects those

rights enumerated in the United States or Georgia 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 (7).16 Pertinent here, we explained

16 The 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

40 that adopting the predecessor to Paragraph VII meant that the

formerly 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 (7). 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

slavery,” including “what rights should the former slaves enjoy and who should enforce them?”). 41 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

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 marshaled 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

LE2d 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. Co., 87

Ga. 691, 696 (1) (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

[s]tare decisis, but [f]iat 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 (3) (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

18 For 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, 314 Ga. 109, 116 (2) (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” (citation and punctuation omitted)); 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

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 Council 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.” (cleaned up; emphasis

in original) (quoting Thompson v. Talmadge, 201 Ga. 867, 874 (1)

(41 SE2d 883) (1947))). 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 (4) (789 SE2d 175) (2016)

case is final and appealable (citations and punctuation 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 (Blackwell, J., dissenting) (arguing 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, 314 Ga. 823, 834 (1) (878 SE2d 481) (2022) (Pinson, J., concurring) (quoting Elliott, 305 Ga. at 188 (II) (C)). See also id. (“When we rely on such

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 SE2d 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

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, Par. 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, 302 Ga. 228, Elliott, 305 Ga. 179, and Awad, 313 Ga. 99. 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

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

53 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 person’s refusal to perform protected affirmative acts

against her at trial to suggest an adverse inference of guilt, and

54 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 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 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

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

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,

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 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

application of those decisions here.

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 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

57 I am authorized to state that Justice Warren joins in this

concurrence.

a consistent and definitive conclusion that Paragraph XVI protected affirmative acts. Id. 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 (II) (B) n.6 (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.” 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 submitting to, or refusing to submit to, a chemical

59 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 (2)

(c) (i). Yet, for most of our history, we have given little consideration

to the plain and ordinary meaning of the text when construing the

constitutional right against self-incrimination. Indeed, in our recent

60 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 (III) (C) (i) n.16

(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

manner to criminate himself.” Ga. Const. of 1877, Art. I, Sec. I, Par.

61 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 (2) (c) (ii) n.5 (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 (2) (c) (ii) n.6 (“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

witness given under oath.” Noah Webster, A Dictionary of the

62 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

have understood the term “testimony,” as used in the constitutional

63 self-incrimination provision, to have some technical or particular

idiosyncratic meaning not captured in dictionaries of the time. See

Olevik, 302 Ga. at 239 (2) (c) (ii) n.6 (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 person using such force has no lawful warrant or authority for doing so.

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 Day, 63 Ga. at 669 (2) (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. Id. at 669 (2).

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 (punctuation omitted)

(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

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 (1) (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 language of the self-incrimination provision, relying instead on two

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

67 to criminate himself.’” Id. Then, based on the historical fact that

the common-law right was a precursor of the constitutional right,

we leapt to the conclusion that

[t]he 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, 63 Ga. 667). 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

68 testimony.27

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

27 Calhoun is one of several cases in which this Court has ignored Drake’s

construction of the self-incrimination provision as irrelevant to its holding. See, e.g., Elliott, 305 Ga. at 203 (III) (C) (i) n.16 (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], 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], 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 South Ga. Med. Center 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.” (citation andpunctuation omitted)). 69 from which it derived. I do not dispute that the constitutional right’s

historical predecessor was the common-law right or that the

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 (3) (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

70 Constitution.28

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)

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 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 (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

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

72 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

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

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 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

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.” (citation and

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

30It 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

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

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) (citations, punctuation and emphasis 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 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.” (citation and 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) (citation and punctuation omitted; emphasis supplied). 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.

75 that point in other directions.” Reading Law 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 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 (expressio unius est exclusio alterius).”).

As relevant here, the key phrase in Paragraph XVI is “to give

testimony,” and nothing about the textual context in which that

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 (II) (B) & n.6 (“[T]his is not a case that calls us to articulate precisely when such a presumption may be rebutted.”). 76 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

Georgians who ratified Paragraph XVI of the 1983 Constitution

would have understood the term to carry some technical or archaic

sense. See Reading Law 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 Paragraph XVI,

other sound principles of interpretation overwhelmingly favor an

77 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

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

78 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

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’ Compensation, 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

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 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

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

into evidence against them.

The workability factor also weighs in favor of overruling our

80 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

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 (2).

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

81 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.

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.” Olevik, 302 Ga.

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

82 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”

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

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). 83 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).

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

84 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. Olevik, 302 Ga. at 245 (2) (c) (iv).

In concluding that the scope of the constitutional right against self-

incrimination extends to all 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

85 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”).

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-

86 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

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

87 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

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)

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.

(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); 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 Decided November 2, 2022 — Reconsideration denied November

17, 2022.

DUI. Paulding Superior Court. Before Judge Beavers.

Hunter J. Rodgers, Michael B. Syrop, Dustin S. Townsend, for

appellant.

Matthew W. Rollins, District Attorney, A. Brett Williams,

Assistant District Attorney; Christopher M. Carr, Attorney General,

Patricia B. Attaway Burton, Deputy Attorney General, Paula K.

Smith, Senior Assistant Attorney General, for appellee.