Francis Gerard Kallon v. State

• Court: Court of Appeals of Georgia
• Decided: June 18, 2020
• Docket: A20A0030
• Status: Published

Opinion

SECOND DIVISION MILLER, P. J., MERCIER and COOMER, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules

DEADLINES ARE NO LONGER TOLLED IN THIS COURT. ALL FILINGS MUST BE SUBMITTED WITHIN THE TIMES SET BY OUR COURT RULES.

June 18, 2020

In the Court of Appeals of Georgia A20A0030. KALLON v. THE STATE.

MILLER, Presiding Judge.

After a bench trial in Gwinnett County, the trial court found Francis Gerard

Kallon guilty of DUI less safe, DUI per se, and failure to maintain lane. Kallon argues

that the trial court erred in admitting the results of the state-administered breath test

because the “unconstitutional implied consent notice” that was read to him is

inherently coercive when applied to a breath test and that he was unlawfully coerced

into submitting to the test.1 For the reasons that follow, we vacate the trial court’s

denial of Kallon’s motion to suppress and motion in limine and remand the case for

1 When this case was initially before this Court, Kallon’s main argument was that, under Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966), Miranda warnings are necessary before a request for a state-administered breath test. The Supreme Court of Georgia rejected this argument in State v. Turnquest, 305 Ga. 758 (827 SE2d 865) (2019), and transferred Kallon’s case back to this Court. the trial court to consider his suppression argument in light of the Supreme Court of

Georgia’s decision in Elliott v. State, 305 Ga. 179 (824 SE2d 265) (2019).

“When the evidence is uncontroverted and no question of witness credibility

is presented, the trial court’s application of the law to undisputed facts in ruling on

a motion to suppress or a motion in limine is subject to de novo appellate review.”

(Citation and punctuation omitted.) Adcock v. State, 299 Ga. App. 1 (681 SE2d 691)

(2009).

In early 2017, Kallon struck a curb while driving and called a tow truck for

assistance with changing his tire. Upon arriving at the scene, the tow truck driver

found Kallon unresponsive and called the police. The responding officer knocked on

Kallon’s window, but Kallon had difficulty rolling it down. The officer smelled a

strong odor of alcohol and noticed that Kallon’s eyes were bloodshot and glazed. The

officer conducted field sobriety evaluations, which yielded six out of six clues on the

horizontal gaze nystagmus test, seven out of eight clues on the walk-and-turn, and

three out of four clues on the one-leg stand. Immediately after arresting Kallon, the

officer read the age-appropriate Georgia implied consent notice in accordance with

OCGA § 40-5-67.1 (b) (2) (2012). The notice stated, in part: “Your refusal to submit

to the required testing may be offered into evidence against you at trial.” The officer

2 asked Kallon whether he would submit to the state-administered breath test, and

Kallon responded, “yes, sir.” There was no further discussion concerning the test.

Kallon provided a breath sample, which showed a blood alcohol concentration of .115

grams.

The State filed an accusation against Kallon, charging him with DUI less safe

(OCGA § 40-6-391 (a) (1)), DUI per se (OCGA § 40-6-391 (a) (5)), and failure to

maintain lane (OCGA § 40-6-48 (1)). Kallon filed a motion to suppress the results of

the breath test, which the trial court denied, and the trial court also denied an oral

motion in limine to exclude the evidence from the test results. The trial court found

Kallon guilty of all three counts and entered a 12-month sentence, consisting of 10

days in jail, suspended, and ordered Kallon to complete community service. This

appeal followed.

1. First, Kallon argues that his convictions for DUI less safe and DUI per se

should be reversed because the “unconstitutional implied consent notice” which the

officer read to him is inherently coercive when applied to a request for a breath

sample. In essence, he contends that because a suspect’s refusal to consent to a breath

test can no longer be admitted into evidence in criminal proceedings under Elliott, the

former implied consent notice is inherently coercive because it provides that one’s

3 refusal “may be” so admitted. Because we will not construe the Supreme Court’s

decision in Elliott as a determination that the former implied consent notice is

unconstitutionally coercive, this enumeration of error fails.

Analyzing Kallon’s argument requires us to assess the contours of two salient

decisions of the Supreme Court of Georgia. First, in Olevik v. State, 302 Ga. 228, 247

(3) (a) (806 SE2d 505) (2017), the defendant “claim[ed] that the implied consent

notice is so misleading and inaccurate that no person can validly consent to a

state-administered test once the notice has been read.” The Supreme Court, however,

determined that former OCGA § 40-5-67.12 is not per se coercive and rejected the

defendant’s argument that the notice is unconstitutional on its face. Id. at 247-250 (3)

(a). As part of its rationale, the Court explained that the defendant had “failed to

demonstrate that the implied consent notice is unconstitutional in all of its

applications.” Id. at 248 (3) (a) (i).3

2 This statute directs the arresting officer regarding the selection of an appropriate implied consent notice and also contains the language of the various implied consent notices. OCGA § 40-5-67.1 (2012). The legislature has since amended the statute, effective January 1, 2019. OCGA § 40-5-67.1. 3 We are fully aware that, in relying on the Elliott decision, Kallon is advancing a different argument in support of unconstitutionality than those addressed in Olevik, which pre-dates Elliott. As discussed further, however, the Supreme Court in Elliott made no determination that the implied consent notice is inherently coercive on its

4 In its subsequent Elliott decision, the Court addressed a separate issue, i.e., “the

consequence of refusing” to submit to the state-administered breath test. Elliott,

supra, 305 Ga. at 223 (IV) (E). To this end, the Court first held that, in a criminal

prosecution, the Georgia Constitution “precludes admission of evidence that a suspect

refused to consent to a breath test.” Id. Relatedly, the Court held that OCGA §§

40-5-67.1 (b) and 40-6-392 (d) were unconstitutional to the extent that they allowed

a defendant’s refusal to submit to a breath test to be admitted into evidence at a

criminal trial. Id. The Court explained at length that its decision was not nullifying

its numerous prior holdings — including Olevik’s holding — that the implied consent

notice itself is not per se coercive. Elliott, supra, 305 Ga. at 222 (IV) (E). Regarding

the implied consent notice, the Court merely noted, “[t]his decision may well have

implications for the continuing validity of the implied consent notice as applied to

breath tests.” Id.

Clearly, the Supreme Court in Elliott never held that the former implied

consent notice is unconstitutionally coercive. And if the Supreme Court in Elliott was

careful to deliberately leave open the question of the impact of its decision on the

validity of the implied consent notice, this Court will not take it upon itself to

face.

5 construe the Supreme Court’s decision as a ruling that the notice is unconstitutionally

coercive. Indeed, while “this [C]ourt may treat a statute as unconstitutional if it has

already been held so by . . . the Supreme Court of this state,” “this [C]ourt ha[s] no

authority to declare an Act of the legislature unconstitutional.” (Citation omitted.)

Pitts v. Gen. Motors Acceptance Corp., 130 Ga. App. 333, 335 (1) (203 SE2d 281)

(1973). Kallon urges that the “ordinary and reasonable extension” of the Supreme

Court’s holding in Elliott is that the former implied consent notice has always been

unconstitutional. But this argument directly undercuts our Supreme Court’s repeated

cautioning “that [its] decisions stand only for the points raised by the parties and

decided by the [C]ourt.” (Emphasis supplied.) State v. Walker, 295 Ga. 888, 893 (764

SE2d 804) (2014). See also Palmer v. State, 282 Ga. 466, 468 (651 SE2d 86) (2007)

(explaining that the Court of Appeals had “read too much into” two prior Supreme

Court opinions where an issue was not raised in either of the two cases). Again, the

Supreme Court in Elliott did not rule on the constitutionality of the former implied

consent notice; the Court made explicitly clear that it was addressing “what

consequences flow” from a defendant’s assertion of the right to refuse to submit to

a breath test. Elliott, supra, 305 Ga. at 223 (IV) (E). Therefore, we reject Kallon’s

6 argument that the implied consent notice which was read to him is unconstitutionally

coercive.

2. In a related clam of error, Kallon argues that the threat within the notice

unlawfully coerced him into submitting to the State’s breath test and that the State

forced him to choose between waiving his Georgia constitutional right against self-

incrimination and being incriminated by invoking it. Because this claim directly

implicates the Elliott decision, we vacate the trial court’s denial of Kallon’s motion

to suppress and motion in limine and remand for reconsideration of this suppression

argument.

“[E]valuating whether self-incrimination was compelled depends on the totality

of the circumstances. . . .” Olevik, supra, 302 Ga. at 248 (3) (a) (i). In the trial court,

Kallon argued that he did not voluntarily submit to the breath test because he was

misadvised of his rights when he was told that his exercise of his right against self-

incrimination could be used against him at trial. Although the trial court determined

that Kallon’s consent was voluntary under the totality of the circumstances, the trial

court could not consider the implication of the Elliott decision because Elliott had not

been decided at the time of the motion hearing or Kallon’s trial. See Elliott, supra,

305 Ga. at 223 (IV) (E) (“We recognize that our holding here may affect a

7 totality-of-the-circumstances inquiry into whether a defendant voluntarily submitted

to a breath test where the State first threatened that, if she refused, that would be

evidence against her at trial.”). Therefore, we vacate the trial court’s ruling on

Kallon’s motion to suppress and motion in limine and remand this case for the trial

court to reconsider whether Kallon’s consent was voluntary under the totality of the

circumstances in light of Elliott. See State v. Turnquest, 305 Ga. 758, 775-776 (5)

(827 SE2d 865) (2019) (vacating order on suppression motion and remanding for the

trial court to consider, in light of Elliott, whether the implied consent notice that

misleadingly suggested that the defendant’s refusal to take the breath test could be

used against him at trial rendered his consent to the breath test involuntary). We note

that our opinion is not a determination that the trial court admitted the test results in

error, and so we are not vacating Kallon’s convictions or ordering that he be granted

a new trial. The trial court, however, is free to order such relief upon remand if it

determines that the breath test results should be suppressed. See Livingston v. State,

267 Ga. App. 875, 876 (2) (600 SE2d 817) (2004).

Judgment vacated and case remanded. Mercier and Coomer, JJ., concur.

8 9