Cherry v. State

813 S.E.2d 408
Court of Appeals of Georgia·Decided February 21, 2018·No. A17A2085·Published·Cited by 4 cases

Opinion

Ellington, Presiding Judge.

A jury found Anthony Cherry guilty of driving under the influence of alcohol, OCGA § 40-6-391 (a) (1). Following the denial of his motion for new trial, Cherry appeals, arguing that the trial court erred in admitting evidence of his refusal to submit to breath testing. He also contends that the trial court erred in admitting evidence of his horizontal gaze nystagmus ("HGN") test and in failing to exercise discretion in acting as the thirteenth juror. For reasons that follow, we find Cherry's arguments lack merit and affirm.

Viewed favorably to the verdict, the evidence shows that, on the night of October 1, 2015, Brian Head was driving when he saw another car in a ditch. Head called 911 and made sure the driver was okay. Head told the driver-later identified as Cherry-that he had called police, and Cherry responded that there was no need to call police. A sheriff's deputy responded and discovered Cherry attempting to maneuver his car out of the ditch. According to the deputy, it was readily apparent that the car, which had sustained serious front-end damage, was not going to move.

The deputy called for a wrecker to tow the vehicle, and he asked Cherry to walk up the embankment while he was completing the accident report. As soon as the deputy was talking to Cherry face-to-face, away from the smell of the wrecked car, he noticed a "strong odor of [an] alcoholic beverage" and saw that Cherry had bloodshot eyes and was a bit unsteady on his feet. The deputy asked Cherry how much he had to drink, and Cherry responded that he had two glasses of wine. He then asked Cherry to perform the HGN field sobriety test to see if Cherry demonstrated signs of impairment. Cherry demonstrated six of six potential signs of impairment. Cherry told the deputy he had taken Prozac about eight hours before the *410accident took place. The deputy also had Cherry recite the alphabet from "e" to "u," and Cherry proceeded to recite the alphabet from "e" to "z." The deputy opted not to perform additional field sobriety tests due to road and weather conditions.

At this point, the deputy asked Cherry to perform a preliminary breath test. Cherry began physically backing away from the deputy and asking if he was going to be arrested based on the breath test. Cherry refused to take the preliminary breath test, and the deputy arrested him for driving under the influence. The deputy then read Cherry his implied consent rights, and Cherry agreed to submit to a breath test. After being taken to jail, however, Cherry began expressing reservations about taking the test. At Cherry's request, the deputy re-read him his implied consent rights after which he refused to submit to the test. Based upon the evidence presented, the jury found Cherry guilty of driving under the influence of alcohol to the extent it was less safe for him to drive.

1. Cherry contends that, notwithstanding that he was advised of his right to refuse chemical testing under Georgia's Implied Consent law,1 he refused to submit to a state-administered breath test in reliance on his Fourth Amendment protections against unreasonable searches and seizures and the corresponding protections of our state constitution.2 Cherry argues that, because Georgia law precludes the admission as evidence of guilt of a defendant's exercise of his constitutional rights, the trial court erred in admitting evidence that he refused to submit to testing.

As the Supreme Court of Georgia recently explained, however, the Fourth Amendment permits a warrantless breath test as a search incident to a DUI arrest. Olevik v. State , 302 Ga. 228, 234 (2) (b), 806 S.E.2d 505 (2017).3 In that case, the Supreme Court noted that Georgia courts generally interpret our state constitutional protections against unreasonable searches and seizures consistent with such protections under the Fourth Amendment. Id. Discerning no reason that our courts should interpret the corresponding provision differently in the context of DUI-related breath tests, the Supreme Court concluded that our Constitution also would allow a warrantless breath test as a search incident to arrest. Id. Because a warrantless breath test is permitted as a search incident to a valid DUI arrest, securing a breath test after arrest pursuant to our Implied Consent law does not violate the Fourth Amendment. Id.

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Cherry v. State, 813 S.E.2d 408 (Ga. Ct. App. 2018).

813 S.E.2d 408 (Cherry v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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