State v. Turnquest

305 Ga. 758

• Court: Supreme Court of Georgia
• Decided: May 6, 2019
• Docket: S19A0157
• Status: Published

Opinion

305 Ga. 758 FINAL COPY

S19A0157. THE STATE v. TURNQUEST.

PETERSON, Justice.

This is another DUI case requiring us to consider the meaning

of the Georgia Constitution. In Miranda v. Arizona, 384 U. S. 436

(86 SCt 1602, 16 LE2d 694) (1966), the United States Supreme

Court imposed on law enforcement a requirement to provide persons

in custody with a prophylactic warning of their rights before

subjecting those persons to interrogation. Today we hold that

neither the Georgia right against compelled self-incrimination, the

Georgia right to due process, nor a Georgia statute prohibiting

compelled self-incrimination requires law enforcement to provide

similar warnings to persons arrested for DUI before asking them to

submit to a breath test.

In 2017, we reiterated that the Georgia Constitution’s right

against compelled self-incrimination is broader in one sense than

the similar right protected by the United States Constitution; the Georgia right prohibits the compulsion of incriminating acts and

testimony, while the federal right prohibits only the compulsion of

testimony. See Olevik v. State, 302 Ga. 228, 235-246 (2) (c) (806

SE2d 505) (2017). That holding was based on the language, history,

and context of Georgia’s Constitution. Id. And earlier this year, we

held that the Georgia Constitution’s right against compelled self-

incrimination prohibits the State from introducing evidence of a

defendant’s exercise of that right; the federal right is similar in its

exclusion of evidence of a defendant’s exercise. See Elliott v. State,

305 Ga. 179, 210 (IV) (824 SE2d 265) (2019). But our holding in

Elliott was not based on federal precedent, which we found

unpersuasive; instead, our conclusion was again based on the

language, history, and context of Georgia’s Constitution. Id. Today,

we are asked to apply those opinions to conclude that a Georgia

statute — OCGA § 24-5-506 — and the Georgia Constitution require

law enforcement to give Miranda-like warnings (an argument

presented because Miranda itself does not apply). After again

reviewing the language, history, and context of the Georgia Constitution, we reject that invitation. Nothing in the Georgia

Constitution or OCGA § 24-5-506 requires Miranda-style

prophylactic warnings before a suspect in custody is asked to submit

to a breath test.

In Price v. State, 269 Ga. 222 (498 SE2d 262) (1998), we held

that the failure to give the appellant “Miranda warnings” rendered

evidence regarding field sobriety tests inadmissible because the

appellant was in custody when asked to perform the tests. 269 Ga.

at 225 (3). But that case was wrongly decided, and because stare

decisis considerations do not warrant retaining that precedent to the

extent that it is contrary to our conclusion about the meaning of the

Georgia Constitution and OCGA § 24-5-506, we vacate the trial

court’s order suppressing breath-test results for failure to give

Miranda warnings. We remand for the trial court to consider an

argument not ruled on below.

1. Facts.

The parties stipulated to the following facts. In March 2017,

defendant Stephen Turnquest was involved in a single-vehicle accident. The responding officer arrested Turnquest for DUI. After

arresting Turnquest and before asking him to submit to a breath

test, the officer read the age-appropriate Georgia implied consent

notice pursuant to OCGA § 40-5-67.1 (b) (2) but did not give Miranda

warnings. Turnquest provided a breath sample.

Turnquest was charged with DUI less safe, DUI per se, and

failure to maintain lane. He filed a motion to exclude the results of

the breath test on essentially two grounds. First, Turnquest argued

that Miranda warnings must precede a request to perform a

chemical breath test because, as we held in Olevik, submitting to a

breath test is an incriminating act that the right against compelled

self-incrimination, secured by Article I, Section I, Paragraph XVI of

the Georgia Constitution of 1983 (“Paragraph XVI”), prevents the

State from compelling.1 Second, Turnquest argued that the test

results should be suppressed because the implied consent

1 As in Olevik, the breath test at issue here requires the cooperation of

the person being tested because a suspect must blow deeply into a breathalyzer for several seconds in order to produce an adequate sample. See Olevik, 302 Ga. at 243 (citing Birchfield v. North Dakota, __ U. S. __, __ (136 SCt 2160, 195 LE2d 560) (2016)). advisement misled him by stating that if he refused the test, that

refusal could be used against him at trial and could affect his driving

privileges. The trial court granted the motion on the basis that

Miranda warnings must precede an officer’s request for a breath

sample from a suspect in custody. In reaching this conclusion, the

trial court relied on Paragraph XVI, OCGA § 24-5-506 (a) (formerly

OCGA § 24-9-20), and our decision in Price, as well as several

Georgia appellate decisions that we relied on in Price. The State

appealed under OCGA § 5-7-1 (a) (4), asking us to overrule Price.

2. Miranda itself does not require suspects in custody to be warned of their constitutional rights before they are asked to submit to a breath test. Although Turnquest argues that he was entitled to Miranda

warnings, he cannot, and does not, rely on Miranda itself for his

argument that the results of his breath test must be suppressed.

Miranda provides — at least in part as a matter of “safeguard[ing]

. . . the privilege against self-incrimination” as embodied in the Fifth

Amendment to the United States Constitution — that the

prosecution may not use any statements stemming from custodial interrogation of the defendant unless the defendant is first informed

of certain rights. 384 U. S. at 444. Specifically, “the person must be

warned that he has a right to remain silent, that any statement he

does make may be used as evidence against him, and that he has a

right to the presence of an attorney, either retained or appointed.”

Id. Miranda does not apply to a request for a breath test, however,

because affirmative acts such as submitting to a breath test do not

fall within the reach of the right against compelled self-

incrimination protected by the Fifth Amendment. See United States

v. Wade, 388 U. S. 218, 221-223 (87 SCt 1926, 18 LE2d 1149) (1967);

Holt v. United States, 218 U. S. 245, 252-253 (31 SCt 2, 54 LE 1021)

(1910); see also Schmerber v. California, 384 U. S. 757, 760-765 (86

SCt 1826, 16 LE2d 908) (1966).

3. Neither the Georgia Constitution nor OCGA § 24-5-506 requires suspects in custody to be warned of any constitutional rights before they are asked to submit to a breath test. Turnquest’s argument thus turns on whether some aspect of

Georgia law requires law enforcement to give a suspect in custody

Miranda-like warnings before asking the suspect to consent to a breath test. We consider several possible Georgia law sources for

such a requirement. Turnquest explicitly relies on Paragraph XVI

in support of his argument that warnings were required. We also

consider the due process provision of the Georgia Constitution,

found at Article I, Section, I, Paragraph I of the Georgia Constitution

of 1983 (“Paragraph I”), given that due process also is implicated in

questions of whether incriminating statements or acts were

constitutionally acquired by law enforcement and may be at least

one basis for the Miranda rule. See Dickerson v. United States, 530

U. S. 428, 433 (120 SCt 2326, 147 LE2d 405) (2000) (“Over time, our

cases recognized two constitutional bases for the requirement that a

confession be voluntary to be admitted into evidence: the Fifth

Amendment right against self-incrimination and the Due Process

Clause of the Fourteenth Amendment.”). And the trial court relied

at least in part on former OCGA § 24-9-20 (a), now OCGA § 24-5-506

(a), so we consider that statute as a possible source, as well. We

ultimately conclude that none of these provisions of Georgia law require law enforcement to warn persons in custody of any

constitutional rights before asking them to submit to a breath test.

(a) Paragraph XVI does not require that a suspect be warned of his right against compelled self-incrimination or any other constitutional rights before being asked to submit to a breath test.

The Fifth Amendment provides that “[n]o person . . . shall be

compelled in any criminal case to be a witness against himself[.]”

Finding that some compulsion is inherent whenever a suspect is

being subjected to custodial interrogation, the United States

Supreme Court in Miranda imposed a prophylactic rule that, before

a suspect in custody can be questioned, he must be advised of certain

constitutional rights, including the right to remain silent. 384 U. S.

at 467-472. But

Georgia constitutional provisions may confer greater, fewer, or the same rights as similar provisions of the United States Constitution, and decisions of the United States Supreme Court interpreting those similar provisions are persuasive in our interpretation of the Georgia Constitution only to the extent that those decisions are rooted in shared history, language, and context. Elliott, 305 Ga. at 187 (II) (C); see also Olevik, 302 Ga. at 234 (2) (b)

n.3. It is not entirely clear that Miranda constituted an

interpretation of any particular federal constitutional provision or

provisions. But even to the extent that Miranda was a construction

of one or more federal analogues to provisions found in the Georgia

Constitution, it certainly involved no consideration of shared

language, history, or context. And so Miranda and its progeny offer

us no meaningful guidance as to whether Paragraph XVI of the

Georgia Constitution independently requires warnings like those set

forth in Miranda.

“[W]e interpret the Georgia Constitution according to its

original public meaning.” Elliott, 305 Ga. at 181 (II). To determine a

provision’s original public meaning, we must consider the language,

history, and context of that provision. Id. at 188 (II) (C). Because

Paragraph XVI has been carried forward without material change

since it first entered a Georgia Constitution in 1877 (the “1877

Provision”), we presume, absent some indication to the contrary,

that it has retained the original public meaning it had in 1877. Id. at 183 (II) (A). Thus, we begin by examining the language, history,

and context of the 1877 Provision.

(i) Nothing in the language, history, and context of the 1877 Provision indicates that it required a suspect to be warned of his right against compelled self-incrimination or any other constitutional rights before being questioned or asked to perform an incriminating act.

The 1877 Provision provided, “No person shall be compelled to

give testimony tending in any manner to criminate himself.” Ga.

Const. of 1877, Art. I, Sec. I, Par. VI.2 At the time of the 1877

Constitution, the term “compel” was defined as “[t]o drive or urge

irresistibly” or “[t]o take by force.” Noah Webster, A Dictionary of

the English Language 80 (1878).3 The failure of an investigating

officer to apprise a suspect of any constitutional rights, without

more, does not render a subsequent incriminating act by the suspect

“compelled” within the ordinary sense of that word, which carries

2 Our current Paragraph XVI provides, “No person shall be compelled to

give testimony tending in any manner to be self-incriminating.” Ga. Const. of 1983, Art. I, Sec. I, Par. XVI. 3 A dictionary more contemporaneous with the 1983 Constitution similarly defined “compel” as to “constrain” or “force” a person to do something. Webster’s New World Dictionary 289 (2d College ed. 1980). with it a connotation of involuntariness. Even in reaffirming the

Miranda rule, the United States Supreme Court has acknowledged

that failure to warn a suspect of any constitutional rights does not

render a subsequent statement “involuntary” in that term’s

traditional sense. See Dickerson, 530 U. S. at 444 (“The

disadvantage of the Miranda rule is that statements which may be

by no means involuntary, made by a defendant who is aware of his

‘rights,’ may nonetheless be excluded and a guilty defendant go free

as a result.”).4 The language of the 1877 Provision does not support

a conclusion that the provision required a suspect to be warned of

the right against compelled self-incrimination or any other

4 This acknowledgment seems at odds with the Miranda Court’s attempt

to root its ruling in the language of the Fifth Amendment, which like Paragraph XVI forbids self-incrimination only if “compelled,” by insisting that because of the “compulsion inherent in custodial surroundings, no statement obtained from [a] defendant [in custody] can truly be the product of his free choice” absent the use of adequate prophylaxis such as Miranda warnings. 384 U. S. at 458; see also id. at 531 (White, J., joined by Harlan and Stewart, JJ., dissenting) (“[T]he Court’s holding today is neither compelled nor even strongly suggested by the language of the Fifth Amendment[.]”); Edwards v. Arizona, 451 U. S. 477, 491-492 (101 SCt 1880, 68 LE2d 378) (1981) (Powell, J., joined by Rehnquist, J., concurring) (“[T]he Court in Miranda . . . imposed a general prophylactic rule that is not manifestly required by anything in the text of the Constitution.”). constitutional rights in order for a custodial statement to be

admissible.

The history and context of the 1877 Provision also do not

support a conclusion that it requires custodial statements to be

preceded by warnings of constitutional rights. “For context, we may

look to the broader context in which [the] text was enacted, including

other law — constitutional, statutory, decisional, and common law

alike — that forms the legal background of the constitutional

provision.” Elliott, 305 Ga. at 187 (II) (B) (citation and punctuation

omitted). “Where, as here, a constitutional provision incorporates a

pre-existing right, the provision cannot be said to create that right

— it merely secures and protects it.” Id. at 212 (IV) (B). “And 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.”

Id. In particular, the Georgia General Assembly in 1784 adopted the

statutes and common law of England as of May 14, 1776. See Cobb’s Digest, p. 721 (1851); OCGA § 1-1-10 (c) (1) (maintaining adoption

of English statutory and common law).

Turnquest concedes that English common law did not require

a suspect in custody to be warned of any constitutional rights. And

we have found no evidence that English common law as of 1776

required as much. A practice of warning suspects of their rights

before questioning apparently began to develop in England or the

United States around the turn of the 19th century at the earliest.

See Wesley MacNeil Oliver, Magistrates’ Examinations, Police

Interrogations, and Miranda-Like Warnings in the Nineteenth

Century, 81 Tul. L. Rev. 777, 784-789 (2007) (“The first person ever

to inform a criminal defendant he had the right to remain silent and

anything he said could be used against him was likely an English

magistrate conducting a preliminary hearing around the turn of the

nineteenth century.”). But this development did not reflect an

understanding that the common law right against compelled self-

incrimination — or any other common law right — required such

warnings; rather, it was likely an attempt to insulate confessions from exclusion on the basis that they were the product of a threat or

promise. Id.

To explain further: American magistrates conducted much of

the questioning of arrestees until the mid-1800s, a pretrial

procedure borrowed from British statutes. See Wesley MacNeil

Oliver, The Neglected History of Criminal Procedure, 1850-1940, 62

Rutgers L. Rev. 447, 454-455 (2010); Akhil Reed Amar & Renee B.

Lettow, Fifth Amendment First Principles: The Self-Incrimination

Clause, 93 Mich. L. Rev. 857, 897-898 (1995); Eben Moglen, Taking

the Fifth: Reconsidering the Origins of the Constitutional Privilege

Against Self-Incrimination, 92 Mich. L. Rev. 1086, 1095 (1994). As

the 18th century drew to a close, English and American courts

increasingly excluded statements as improperly induced by threats

or promises. Oliver, 81 Tul. L. Rev. at 786-789. Although it is not

clear that the practice was widespread, magistrates in at least some

jurisdictions developed the practice of warning arrestees of their

right to remain silent as a means to ensure admission of the

confessions that resulted from their interrogations. Id. at 789 (“Beginning in the late-eighteenth and early-nineteenth centuries,

magistrates began to caution suspects they examined that their

statements could be used against them. Courts began to allow the

statements to be admitted, notwithstanding otherwise improper

inducement, if the suspect was cautioned he was not required to

answer the magistrate’s questions and made aware of the

consequences of confessing.”) (citation omitted). This practice,

including a warning about the right to counsel, was codified in New

York in 1829, and that statute was copied by Missouri and Arkansas

shortly thereafter. See George C. Thomas III & Amy Jane Agnew,

Happy Birthday Miranda and How Old Are You, Really? 43 N. Ky.

L. Rev. 301, 301, 312-314 (2016); Oliver, 81 Tul. L. Rev. at 792; see

also Albert W. Alschuler, A Peculiar Privilege in Historical

Perspective: The Right to Remain Silent, 94 Mich. L. Rev. 2625,

2660-2661 (1996) (“In New York City, magistrates began routinely

to caution defendants in 1835[.]”). There is evidence that some

American police also may have begun warning suspects of their

rights by the mid-1800s. Oliver, 81 Tul. L. Rev. at 798-808. But it appears that at least one jurisdiction that claimed to have adopted

the police practice of warning suspects of their rights abandoned any

such practice by the end of the 19th century. See id. at 810-820

(discussing New York Police Department’s abandonment of practice

of giving warnings to suspects around 1875); Oliver, 62 Rutgers L.

Rev. at 465 (same). Professor Wigmore in his treatise cited English

case law for the proposition that “it is plain that the old practice was

to give such a warning, when it appeared to be needed.” 4 John

Henry Wigmore, A Treatise on the System of Evidence in Trials at

Common Law § 2269 (1905). “But,” he added,

as general knowledge spread among the masses, and the preparation for testimony became more thorough, this practice seems to have disappeared in England, so far at least as any general rule was concerned. In this country both the rule and the trial custom vary in the different jurisdictions.

Id. (footnote omitted).

More importantly, prior to Miranda, it does not appear that the

failure to warn a suspect of his rights, without more, was widely

considered a basis to exclude a statement. At least one leading 19th century treatise made clear that failure to give such warnings was

not itself a basis to exclude the statement:

Neither is it necessary to the admissibility of any confession, to whomsoever it may have been made, that it should appear that the prisoner was warned that what he said would be used against him. On the contrary, if the confession was voluntary, it is sufficient, though it should appear that he was not so warned. 1 Simon Greenleaf, A Treatise on the Law of Evidence § 229 (11th

ed. 1863) (emphasis in original); see also Leonard W. Levy, Origins

of the Fifth Amendment: The Right Against Self-Incrimination 375

(1968) (“[A suspect] lacked the right to be warned that he need not

answer, for the authorities were under no legal obligation to apprise

him of that right. That reform did not come in England until Sir

John Jervis’s Act in 1848, and in the United States more than a

century later the matter was still a subject of acute constitutional

controversy.”). Although at least one New York decision from the

mid-1800s contained dicta suggesting that confessions made

without proper caution of the right to remain silent are not

admissible, that decision did not specify the source of such a rule.

See O’Brien v. People, 48 Barb. 274, 280 (N.Y. Gen. Term 1867). The United States Supreme Court held around the turn of the 20th

century that the Fifth Amendment right against compelled self-

incrimination does not require a confession to be preceded by

warnings that the suspect’s words could be used against him. See

Powers v. United States, 223 U. S. 303, 313-314 (32 SCt 281, 56 LE

448) (1912) (no violation of Fifth Amendment right against

compelled self-incrimination where defendant not warned that what

he might say in testimony at preliminary hearing before federal

commissioner might be used against him at trial); see also Wilson v.

United States, 162 U. S. 613, 623 (16 SCt 895, 40 LE 1090) (1896)

(rejecting claim that defendant’s statement to investigating

commissioner was involuntarily given, noting it is not essential to

admissibility that confessor be warned that what he said could be

used against him). And we are aware of no Georgia court decision

prior to Miranda, let alone before or contemporaneous with the

adoption of the 1877 Provision, that suggested that the failure to

warn a suspect in custody of his right against compelled self- incrimination rendered the suspect’s statement or incriminating act

inadmissible.

In sum, there is no significant evidence from the common law

as it was understood in 1776, Georgia law as of 1877, or the larger

American legal context as of 1877 that the right to be free from

compelled self-incrimination was understood to require suspects in

custody to be warned of that right — or any other constitutional

right — in order for their otherwise voluntary statements to be

admissible. Nor have we found any evidence that in the years

following adoption of the 1877 Provision that it was understood to

require a suspect in custody to be warned of any constitutional

rights in order for a confession to be admissible. Cf. Moore v. State,

130 Ga. 322, 332 (2) (60 SE 544) (1908) (holding that it was not error

for a trial court to refuse defense counsel’s request to warn a witness

of his right against compelled self-incrimination, because a witness

“is presumed to know the law,” including that he cannot be

compelled to answer any question that would tend to incriminate

him, and the right “is designed for the protection of the witness himself,” not another who may be interested in his testimony); Dunn

v. State, 99 Ga. 211, 211 (2) (syllabus) (25 SE 448) (1896) (“The

failure of the court to caution a witness that he need not answer a

question if the answer would tend to criminate him, is not cause for

setting aside a verdict against one upon whose trial for a crime this

witness testified.”); see also Elliott, 305 Ga. at 217 (IV) (C) (ii)

(noting that decisions issued shortly after the adoption of the 1877

Provision “could not change its original public meaning” but are

“good indicators of its meaning” given their temporal proximity).

Indeed, Turnquest conceded at oral argument that no Georgia case

prior to Miranda required warnings to be given. We conclude that

the original public meaning of the 1877 Provision did not preclude

the admissibility of an incriminating act or statement of a suspect

in custody merely because the suspect was asked to perform the act

or provide the statement without first being warned of any

constitutional rights.

(ii) We find no consistent and definitive construction or other significant legal developments prior to the 1983 Constitution that changed the original public meaning of the 1877 Provision with respect to the necessity of warnings.

Of course, it is Paragraph XVI of the 1983 Constitution that is

ultimately at issue in this case, not the 1877 Provision. But because

the 1877 Provision was retained in the 1983 Constitution without

material change, we presume absent a consistent and definitive

construction or other significant developments to the contrary that

Paragraph XVI carries the same meaning as that of the 1877

Provision. See Elliott, 305 Ga. at 183-184 (II) (A)-(B). We find no

reason to depart from that presumption here.

It is certainly true that, well before the Miranda decision in

1966 and the adoption of the current Paragraph XVI in 1983,

suspects in Georgia were at least occasionally warned of their right

against compelled self-incrimination before being questioned. See,

e.g., Russell v. State, 196 Ga. 275, 277-278 (26 SE2d 528) (1943);

Whitworth v. State, 155 Ga. 395, 399-400 (2) (117 SE 450) (1923);

see also Davis v. State, 122 Ga. 564, 565 (2) (50 SE 376) (1905)

(noting, in context of grand jury testimony, that the “better practice is, not only to notify a witness that he will not be compelled to testify

to anything that will criminate him, but also, when a particular

question is asked, to warn him that the answer to such question

might have that effect; and especially is this true where the witness

belongs to an ignorant class”). And, prior to Miranda, we sometimes

mentioned warnings or the lack thereof in determining whether a

confession was admissible. See Russell, 196 Ga. at 282-286 (2)

(noting warning that the defendant did not have to answer

questions, while rejecting a challenge to the admission of the

defendant’s statement, given “no evidence of any force or even of

persuasion brought to bear on the defendant”); Fairfield v. State,

155 Ga. 660, 668-669 (8) (118 SE 395) (1923) (no error in admitting

defendant’s statement at preliminary hearing for other suspects,

despite lack of warning that he could decline to answer questions

that tended to incriminate him, where defendant was not charged

with offense for which he ultimately was tried at the time of the

hearing); Whitworth, 155 Ga. at 399-402 (2) (finding confession

admissible under state hope of benefit statute where sheriff told defendant he did not have to make a statement and did not tell

defendant he would benefit from confessing); Adams v. State, 129

Ga. 248 (58 SE 822) (1907) (noting defendants were not informed

that they were not required to testify before coroner’s jury in

concluding that such prior testimony was inadmissible under hope

of benefit statute and statute providing that defendants’ statements

in preliminary hearings should not be under oath).5

But the case law contains no indication — let alone a consistent

and definitive construction — that such warnings were a

constitutional prerequisite to admissibility of otherwise voluntary

statements prior to the adoption of the 1983 Constitution.6 To the

5 Consideration of warnings or lack thereof as part of whether a defendant’s statement was voluntary under the totality of the circumstances was consistent with pre-Miranda federal case law. See Davis v. North Carolina, 384 U. S. 737, 740-741 (86 SCt 1761, 16 LE2d 895) (1966), cited in Green v. State, 115 Ga. App. 685, 687 (1) (155 SE2d 655) (1967). 6 In determining the original public meaning of a provision of the Georgia

Constitution, we have considered legal developments both before the original adoption of a provision and in the period immediately following it. See Elliott, 305 Ga. at 212 (IV) (C). We discuss in further detail below the relevance of Price to this case but note here that we do not afford it similar consideration as relevant to the original public meaning of Paragraph XVI, even though it and the Court of Appeals cases on which it was based were decided less than two decades after the 1983 Constitution. Because of the textual similarity of contrary, the Georgia Court of Appeals stated quite plainly in 1948

that “[t]here is no requirement of law that a defendant be apprised

of his constitutional rights or that his statements may be used

against him.” McDowell v. State, 78 Ga. App. 116, 120 (1) (50 SE2d

633) (1948). And although rejections of arguments based on Miranda

are of course not holdings as to the Georgia Constitution, the failure

of any court to mention a separate Georgia right to a warning in

rejecting a Miranda claim in the years following that decision

undermines any suggestion that the Georgia Constitution was

widely understood at that time to require a similar warning. See

Purvis v. State, 129 Ga. App. 208, 208-209 (1) (199 SE2d 366) (1973)

(rejecting argument that results of intoximeter test should have

Paragraph XVI to the 1877 Provision (and the equivalent provisions of our intervening Constitutions), we presume Paragraph XVI to have carried forward without change the original public meaning of the 1877 Provision. And neither Price nor the cases on which it relied identified any pre-1983 basis other than Miranda for a new meaning of Paragraph XVI (for that matter, Price did not suggest that anything about the Georgia Constitution had changed at all). And Miranda itself cannot have changed the meaning of the much older Georgia right against compelled self-incrimination; indeed, to allow decisions of the United States Supreme Court interpreting the federal Constitution to change the meaning of the Georgia Constitution is to abandon any pretense of having an independent state Constitution at all. been excluded because defendant was not advised of constitutional

privilege against self-incrimination and his right to refuse; citing

Schmerber for the proposition that the federal “constitutional

privilege against self-incrimination does not apply to non-

communicative acts such as an intoximeter test”); Bass v. State, 115

Ga. App. 461, 462 (1) (154 SE2d 770) (1967) (recognizing that states

may apply Miranda retroactively but stating that “[t]he majority of

the judges of this court, however, are not inclined to proclaim stricter

standards than the Miranda Case requires”). Given the lack of a

consistent and definitive construction or any other intervening

development7 that altered the original public meaning of the 1877

Provision as to the necessity of warnings, we conclude that

Paragraph XVI retained the 1877 Provision’s original public

meaning on this point. Paragraph XVI does not require that a

suspect in custody be warned of any constitutional rights before

being asked to submit to a breath test.

7 We note that no party has pointed to any other such development. (b) Paragraph I of the Georgia Constitution does not require suspects in custody to be warned of any constitutional rights before being asked to submit to a breath test.

Given Miranda’s due process elements, we also consider, and

reject, the possibility that Paragraph I requires suspects in custody

to be warned of any constitutional rights before being asked to

perform incriminating acts like submitting to a breath test.

Paragraph I provides that “[n]o person shall be deprived of life,

liberty, or property except by due process of law.” Ga. Const. of 1983,

Art. I, Sec. I, Par. I. Nothing in the plain language of that provision

conditions admissibility of an incriminating statement or act by a

suspect in custody on the suspect first being warned of his

constitutional rights. And although we acknowledge that what

process is “due” almost always has been determined from

extratextual sources, nothing in the history or context of Georgia’s

adoption of that provision requires such an understanding, either.

An express due process provision first entered the Georgia

Constitution in 1861; the 1861 Constitution provided, “No citizen

shall be deprived of life, liberty or property, except by due process of law; and of life or liberty, only by the judgment of his peers.” Ga.

Const. of 1861, Art. I, Par. IV. The 1865 Constitution replaced the

word “citizen” with “person” and dropped the second clause. See Ga.

Const. of 1865, Art. I, Par. II (“No person shall be deprived of life,

liberty, or property, except by due process of law.”). A substantially

identical version of this provision has been readopted in every

Georgia Constitution since. Ga. Const. of 1868, Art. I, Sec. III (“No

person shall be deprived of life, liberty, or property, except by due

process of law.”); Ga. Const. of 1877, Art. I, Sec. I, Par. III (same);

Ga. Const. of 1945, Art. I, Sec. I, Par. III (same); Ga. Const. of 1976,

Art. I, Sec. I, Par. I (same); Ga. Const. of 1983, Art I, Sec. I, Par. I

(same except without the final comma). As made clear from the

discussion above, there is no significant evidence from either

English common law as it was understood in 1776 or Georgia law or

the broader American legal context of the 1860s that any right, let

alone the due process right, was understood to require suspects in

custody to receive any sort of warnings in order for their otherwise

voluntary statements to be admissible. And although the federal context may have changed in 1966 by virtue of Miranda, nothing in

the legal history leading up to the adoption of our current Paragraph

I in 1983 indicates that our state constitutional due process right

was understood by Georgians and Georgia courts to have changed in

the same way. And so, if we interpret the Georgia right to due

process independently of the federal right, no prophylactic warning

would be required.

We recognize that “this Court has held in a number of other

contexts that the process due under the United States Constitution

and the Georgia Constitution is the same.” Miller v. Deal, 295 Ga.

504, 510 (2) n.11 (761 SE2d 274) (2014). 8 In some such cases, we

have alluded to the possibility that the Georgia and federal due

process rights may be different, but declined to consider such a

distinction because the parties failed to make any such argument.

8 We have explained that proper state constitutional interpretation requires careful analysis of the language, history, and context of the provision at issue. See Olevik, 302 Ga. at 234 (2) (b) n.3 (citing Grady v. Unified Govt. of Athens-Clarke County, 289 Ga. 726, 729-731 (2) (b) (715 SE2d 148) (2011)). We note no such analysis was done in any of the cases conflating the United States and Georgia constitutional guarantees of due process. See, e.g., Carr v. State, 303 Ga. 853, 857-858 (2) n.8 (815 SE2d 903)

(2018); Gregory v. Sexual Offender Registration Review Bd., 298 Ga.

675, 675 n.1 (784 SE2d 392) (2016). And in some older cases, we held

that Georgia due process is not controlled by federal due process

decisions. See, e.g., Pope v. City of Atlanta, 240 Ga. 177, 178 (1) (240

SE2d 241) (1977); Harris v. Duncan, 208 Ga. 561, 563 (67 SE2d 692)

(1951); Nat. Mtg. Corp. v. Suttles, 194 Ga. 768, 771-772 (22 SE2d

386) (1942). Indeed, it is difficult to conceive how or why Georgians

would delegate to the United States Supreme Court the authority to

alter the meaning of the Georgia Constitution by unknown future

federal decisions. See Olevik, 302 Ga. at 234-235 (2) (b) n.3.

But, of course, there is no decision of the United States

Supreme Court holding that the federal Due Process Clause (or any

other federal constitutional provision) requires Miranda warnings

to precede a request for a breath test. So even if we were to interpret

the Georgia due process right identically with federal

interpretations of the federal due process right, Turnquest cannot

prevail. And as we have already explained, a more careful analysis rooted not in federal case law but in Georgia text, history, and

context shows no basis for any prophylactic warning requirement.

Paragraph I does not require Miranda-style prophylactic warnings

before law enforcement may ask persons in custody to submit to a

breath test.

(c) OCGA § 24-5-506 (a) does not require that a suspect in custody be warned of any constitutional rights before being asked to submit to a breath test.

Although the trial court cited the precursor to OCGA § 24-5-

506 (a) as at least one possible basis for requiring a warning to

precede a request for consent to a breath test, that statute does not

mandate the warning that Turnquest claims was required, either.

OCGA § 24-5-506 (a) provides: “No 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.” Nothing in the text of the statute requires a warning. This

statute’s language, with minor variation, predates the 1877

Provision. See 1868 Code § 3798 (2); 1873 Code § 3854 (2); 1882 Code

§ 3854 (2); 1895 Penal Code § 1011 (2); 1910 Penal Code § 1037 (2); 1933 Code § 38-416; OCGA § 24-9-20 (a) (1973);9 OCGA § 24-5-506

(a). Despite this long history, we have found no instance prior to

State v. O’Donnell, 225 Ga. App. 502, 504-505 (2) (484 SE2d 313)

(1997), in which our appellate courts held that this statute

mandated any sort of warning. And to the extent we have equated

the statute with Paragraph XVI, see, e.g., Keenan v. State, 263 Ga.

569, 572 (2) (436 SE2d 475) (1993), we have already concluded above

that Paragraph XVI does not require warning suspects in custody of

their right against compelled self-incrimination. Accordingly, we

conclude that this statute does not require any sort of warning

before a suspect in custody is asked to submit to a breath test.10

Thus, regardless of whether Turnquest is arguing that he is

entitled to the same warning set forth in Miranda, or some

9 Former OCGA § 24-9-20 (a) provided: “No 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.” 10 We also note that we have said that the statute “applies only to those

who have been charged with an offense — i.e., accused in a returned or proposed charging document — at the time they are called to testify.” State v. Lampl, 296 Ga. 892, 899 (2) (770 SE2d 629) (2015). alternative warning of the right against compelled self-

incrimination specific to Georgia law, we conclude that neither the

Georgia Constitution nor OCGA § 24-5-506 requires that a suspect

in custody receive any such warning before being asked to perform

a breath test. But that does not end our analysis. We must also

consider whether principles of stare decisis warrant retaining the

holding of Price, 269 Ga. at 225.

4. Principles of stare decisis do not warrant retaining the holding of Price.

As noted at the outset of this opinion, we held in Price that the

failure to give a suspect in custody “Miranda warnings” rendered

evidence regarding field sobriety tests inadmissible. 269 Ga. at 225

(3). Notwithstanding the reference to Miranda, Price was clearly a

decision of state law.11 The basis for our ruling that Miranda

warnings were required under state law was not entirely clear,

11 We recognized the inapplicability of Miranda itself in Price, indicating

that the appellant’s challenges were based “on state law grounds[,]” and noting that “[a] defendant who raises only a federal law challenge will not succeed because under the U.S. Constitution the prohibition against self-incrimination applies only when the evidence is ‘testimonial’ and field sobriety tests are not ‘testimonial’ in nature.” 269 Ga. at 224-225 (3) & n.13. however. Our opinion did not cite, let alone analyze, any particular

Georgia statute or Georgia constitutional provision in support of its

holding. Rather, we stated that “[d]ecisions of this Court and the

court of appeals have routinely held that under Georgia law

Miranda warnings must precede a request to perform a field sobriety

test only when the suspect is ‘in custody.’” Price, 269 Ga. at 225 (3)

(citation omitted).

In support of that conclusion, we cited a decision of this Court

in which we said that admission of the appellant’s refusal to undergo

an alco-sensor test12 notwithstanding a lack of Miranda warnings

did not violate the appellant’s rights under the federal and state

constitutional provisions against compelled self-incrimination, or

former OCGA § 24-9-20. See Keenan, 263 Ga. at 571-572 (2). In

Keenan we stated in conclusion that the admission of the appellant’s

refusal did not violate any of these provisions because the appellant

12 An alco-sensor test, different from the test at issue in this case, is an

initial screening device used to aid an officer in determining probable cause to arrest a motorist suspected of DUI. See Keenan, 263 Ga. at 571 (2). was not in custody at the time the test was requested. Id. at 572 (2).

But we also stated that OCGA § 24-9-20 was “inapplicable to the

field sobriety tests in the case at bar because appellant was not a

person charged in a criminal proceeding at the time he was

requested to complete the tests.” Id. (citation and punctuation

omitted). We equated the statute with Paragraph XVI without

further analysis of the constitutional provision (which does not

appear to have been raised by the appellant in that case) and noted

that the Fifth Amendment “covers only a defendant’s statements[.]”

Id. (citation and punctuation omitted) In Price, however, we relied

on Keenan in support of our conclusion that “Georgia law” required

that Miranda warnings must precede a request for a field sobriety

test when a suspect is in custody. Price, 269 Ga. at 225 (3) n.13. But

Keenan offered no support for such a conclusion. For one, although

the decision discussed whether Miranda warnings were required

under the Fifth Amendment, Keenan was about evidence of refusal

to perform an incriminating act, such that it is not clear that the

claims under state law were even about the failure to give warnings. In addition, given that Keenan merely provided reasons for rejecting

a claim where a defendant is not in custody, it is of little utility in

determining whether warnings might be required where a

defendant is in custody.

In support of our decision in Price, we also cited the Court of

Appeals’s decision in O’Donnell, which apparently held that former

OCGA § 24-9-20 (not the Georgia Constitution) required a suspect

in custody to be warned of his right against compelled self-

incrimination before being asked to take field sobriety tests —

notwithstanding a lack of textual or historical support for such a

reading of the statute. 225 Ga. App. at 504-505 (2). Other decisions

we cited in Price considered whether a particular defendant was in

custody for purposes of Miranda when field sobriety tests were

administered, without citing any Georgia statute or constitutional

provision. See State v. Pastorini, 222 Ga. App. 316, 317-318 (1) (474

SE2d 122) (1996); State v. Whitfield, 214 Ga. App. 574, 574-575 (3)

(448 SE2d 492) (1994). Whatever the specific basis for Price’s holding, it is at odds with

our conclusion that neither Georgia statutory nor constitutional law

requires a Miranda warning or something like it in this context.

Although Price’s holding about field sobriety tests — which

encompass a variety of tests with different characteristics, but not a

breath test of the sort at issue here and in Olevik and Elliott — does

not directly control the issue of whether the giving of Miranda

warnings or something similar is a condition of admissibility of the

results of a breath test performed by a suspect in custody, there is

no principled basis for distinguishing Price’s holding from the issue

before us today. Thus, this case requires us to consider whether

Price was rightly decided and, if not, whether we should nonetheless

retain the rule as a matter of stare decisis.

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 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.

Olevik, 302 Ga. at 244-245 (2) (c) (iv) (citations and punctuation

omitted; emphases in original).

For the reasons discussed above, the reasoning of Price was

unsound, which is the most important stare decisis consideration,

especially in constitutional cases. Although Price appears to be a

decision of Georgia statutory law, Georgia constitutional law, or

both, it contains no discussion of any particular Georgia statute or

constitutional provision. Neither our opinion in Price nor any of the

authorities on which it relies contain any analysis of whether the

language, history, and context of the Georgia Constitution required

Miranda warnings as a matter of Georgia constitutional law; when

such analysis is actually done, it is plain that the Georgia

Constitution requires no such thing in this context. And to the extent that Price was based on former OCGA § 24-9-20, its holding

has no basis in history or the text of that provision.

None of the remaining stare decisis factors indicate that we

should retain this unfounded decision. On the age factor, we decided

Price 21 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); Woodard v. State, 296 Ga. 803, 808-814 (3) (771 SE2d 362)

(2015) (overruling 24-year-old interpretation of justification

statute); State v. Hudson, 293 Ga. 656, 661-662 (748 SE2d 910)

(2013) (overruling 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

nearly 29-year-old interpretation of felony murder statute); see also

Olevik, 302 Ga. at 244-246 (2) (c) (iv) (overruling 17-year-old

construction of Paragraph XVI); Ga. Dept. of Natural Resources v.

Center for a Sustainable Coast, Inc., 294 Ga. 593, 601-602 (2) (755

SE2d 184) (2014) (reversing 19-year-old decision on sovereign immunity). Price also created no reliance interests of the sort

normally considered in stare decisis analysis. See Olevik, 302 Ga. at

245-246 (2) (c) (iv). And the workability factor cuts neither in favor

of nor against retaining the rule of Price. As Price by its terms

requires Miranda warnings, which inform suspects of their “right to

remain silent,” see 384 U. S. at 444, and not some Paragraph XVI-

specific warning also apprising suspects of their right to refuse to

perform an incriminating act, retaining Price would not actually

serve the purpose of meaningfully informing DUI suspects of their

state constitutional right to refuse a breath test. On the other hand,

a rule under which law enforcement need not provide Miranda

warnings to suspects in custody who are asked to perform a breath

test means that police must take care not to engage in any

interrogation within the meaning of Miranda before a warning is

given.13

13 None of this is to say that requiring warnings as Miranda does and

Price did is a poor policy choice. It may be good policy. See Dickerson, 530 U. S. at 444 (experience suggests that the totality-of-the-circumstances test of voluntariness under the federal Due Process Clause “is more difficult than Miranda for law enforcement officers to conform to, and for courts to apply in Accordingly, we overrule Price and other Georgia appellate

decisions to the extent that they hold that either OCGA § 24-5-506

(a) or the Georgia Constitution requires law enforcement to warn

suspects in custody of their right to refuse to perform an

incriminating act.14 We also disapprove language in other decisions

that is inconsistent with our holding in this case.15 Because the trial

a consistent manner”). It may be bad policy. See Roseanna Sommers & Vanessa K. Bohns, The Voluntariness of Voluntary Consent: Consent Searches and the Psychology of Compliance, 128 Yale L.J. 1962, 2014-2019 (2019) (summarizing research suggesting Miranda has made little difference to whether people consent to speak to law enforcement). But that policy choice is not for this Court to make. 14 See, e.g., State v. Norris, 281 Ga. App. 193, 197 (635 SE2d 810) (2006);

O’Donnell, 225 Ga. App. at 504-505 (2); Whitfield, 214 Ga. App. at 574-575 (3). 15 In this Court’s only decision to have employed the language of Price,

we concluded that the trial court did not err in denying the appellant’s motion to suppress the results of his field sobriety tests, because he was not in custody at the time he was asked to undergo them. See Mitchell v. State, 301 Ga. 563, 568-569 (2) (802 SE2d 217) (2017). Most of the remaining Court of Appeals cases that recite the rule of Price (or were cited therein) are similar; in none of these does the rule affect the outcome. See, e.g., Pedersen v. State, 337 Ga. App. 159, 162 (786 SE2d 535) (2016); State v. Mosley, 321 Ga. App. 236, 238 (739 SE2d 106) (2013); Crider v. State, 319 Ga. App. 567, 568-569 (737 SE2d 344) (2013); Rowell v. State, 312 Ga. App. 559, 565 (2) (b) (718 SE2d 890) (2011); Hale v. State, 310 Ga. App. 363, 365-366 (1) (714 SE2d 19) (2011); Monahan v. State, 292 Ga. App. 655, 658 (1) n.2 (665 SE2d 387) (2008); Grodhaus v. State, 287 Ga. App. 628, 630 (1) (653 SE2d 67) (2007); McDevitt v. State, 286 Ga. App. 120, 121-122 (1) (648 SE2d 481) (2007); Doyle v. State, 281 Ga. App. 592, 593-594 (1) (636 SE2d 751) (2006); State v. Dixon, 267 Ga. App. 320, 321 (599 SE2d 284) (2004); State v. Pierce, 266 Ga. App. 233, 235 (1) court’s ruling suppressing the results of Turnquest’s breath test

relied on Price, we vacate that ruling.

5. We remand for the trial court to consider Turnquest’s alternative argument in the light of Elliott.

We vacate rather than reverse the trial court’s ruling, because

the trial court’s resolution of the motion to suppress based on Price

meant that it did not consider alternative arguments for suppression

raised by Turnquest. In particular, the trial court did not rule on

Turnquest’s argument that his breath test results should be

suppressed because the implied consent advisement provided to him

(596 SE2d 725) (2004); State v. Foster, 255 Ga. App. 704, 705 (566 SE2d 418) (2002); Harmon v. State, 253 Ga. App. 140, 141 (1) (558 SE2d 733) (2001); State v. Lentsch, 252 Ga. App. 655, 658 (2) (556 SE2d 248) (2001), overruled on other grounds by Hough v. State, 279 Ga. 711, 716-717 (2) (a) (620 SE2d 380) (2005); Arce v. State, 245 Ga. App. 466, 466 (538 SE2d 128) (2000); State v. Coe, 243 Ga. App. 232, 234 (2) (533 SE2d 104) (2000), overruled on other grounds by Olevik, 302 Ga. at 246 (2) (c) (iv) n.11; Scanlon v. State, 237 Ga. App. 362, 364 (4) (514 SE2d 876) (1999), overruled on other grounds by Olevik, 302 Ga. at 246 (2) (c) (iv); Smith v. State, 236 Ga. App. 548, 551 (2) (512 SE2d 19) (1999), reversed on other grounds, 272 Ga. 83 (526 SE2d 59) (2000); Kehinde v. State, 236 Ga. App. 400, 401 (512 SE2d 311) (1999); Evans v. State, 234 Ga. App. 337, 338 (1) (506 SE2d 681) (1998); Nameth v. State, 234 Ga. App. 20, 21 (2) (505 SE2d 778) (1998); Buchnowski v. State, 233 Ga. App. 766, 768 (2) (505 SE2d 263) (1998); State v. Kirbabas, 232 Ga. App. 474, 476 (502 SE2d 314) (1998); Sisson v. State, 232 Ga. App. 61, 67 (4) (499 SE2d 422) (1998); Pastorini, 222 Ga. App. at 317-318 (1). was misleading in that it suggested that if he refused the test, that

refusal could be used against him at trial and could affect his driving

privileges. This argument implicates our decision in Elliott, which

had not been decided at the time the trial court ruled on the motion

to suppress. We therefore remand for the trial court to consider

Turnquest’s alternative argument for suppression in the light of

Elliott.

Judgment vacated and case remanded. All the Justices concur. Decided May 6, 2019.

Breath test; warnings. Gwinnett Superior Court. Before Judge

Iannazzone, pro hac vice.

Daniel J. Porter, District Attorney, Samuel R. d’Entremont,

Assistant District Attorney; Brian W. Whiteside, Solicitor-General,

Christopher M. DeNeve, Assistant Solicitor-General; Christopher

M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy

Attorney General, Paula K. Smith, Senior Assistant Attorney

General, for appellant.

Fakiha Khan, Kendra F. Mitchell, for appellee.