State v. Henry

In the Supreme Court of Georgia

Decided: October 19, 2021

S20G1339. THE STATE v. HENRY.

BETHEL, Justice.

Georgia law allows the results of chemical tests performed on

the blood, urine, breath, or other bodily substances of persons

accused of driving under the influence of alcohol, drugs, or other

substances in violation of OCGA § 40-6-391 to be admitted into

evidence. See OCGA § 40-6-392 (a). When such tests are performed

at the behest of the State, OCGA § 40-6-392 (a) (3) provides that a

suspect “may have a physician or a qualified technician, chemist,

registered nurse, or other qualified person of his own choosing

administer a chemical test or tests in addition to any administered

at the direction of a law enforcement officer.” Where an additional,

independent chemical test is requested but not given, the law allows

for the State’s test to remain generally admissible as evidence
against the driver where the failure to secure the independent test

is “justifiable.” OCGA § 40-6-392 (a) (3).

When this case was before the Court of Appeals, the State

argued that Kemar Henry failed to make a request for additional,

independent chemical testing. In Ladow v. State, 256 Ga. App. 726

(569 SE2d 572) (2002), the Court of Appeals stated that a request

for additional testing has been lawfully asserted when a suspect has

made some statement that “reasonably could be construed, in light

of the circumstances, to be an expression of a desire for such test.”

Id. at 728. Citing Ladow, the Court of Appeals in this case applied

the “reasonably could” standard in the context of evaluating a claim

of ineffective assistance of counsel predicated on counsel’s failure to

object to the admission of a blood test conducted by the Georgia

Bureau of Investigation (GBI) where the State allegedly failed to

honor Henry’s request for independent chemical testing. See Henry

v. State, 355 Ga. App. 217, 219-222 (2) (843 SE2d 884) (2020). In its

analysis, the Court of Appeals held that Henry’s statements met the

“reasonably could” standard. See id. at 221.

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 We granted certiorari to consider whether the Court of Appeals

has set forth the proper standard for determining when a person

accused of driving under the influence has invoked his or her right

to additional, independent chemical testing under OCGA § 40-6-392

(a) (3). As explained below, because we are unpersuaded that the

standard established by the Court of Appeals for making this

determination is consistent with the text and context of the statute,

we reject it in favor of a “reasonably would” standard and overrule

Ladow and all other decisions of the Court of Appeals that have

applied the “reasonably could” standard. Accordingly, we reverse the

Court of Appeals’ judgment here and remand this case for further

proceedings in light of the standard outlined below.

1. The Court of Appeals summarized the facts relevant to this

appeal as follows:

[O]n the night of June 17, 2017, Henry was pulled over by
a Georgia State Patrol trooper. The trooper observed
Henry’s vehicle with its bright lights on driving in the
opposite direction from the trooper. When the trooper
made contact with Henry, his eyes were bloodshot and
watery, and his speech was slurred, though the trooper
did not detect any smell of alcohol. Henry agreed to the

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trooper’s request to perform field sobriety testing. Henry
demonstrated four clues of impairment on the horizontal
gaze nystagmus test, three clues of impairment on the
walk and turn test, and two clues of impairment on the
one-leg stand test. After several unsuccessful attempts to
obtain a reading on the alco-sensor, Henry finally
provided an adequate sample which registered positive
for alcohol.

At that time, Henry was placed under arrest for driving
under the influence of alcohol. The officer read Henry the
age-appropriate implied consent notice, after which
Henry asked the officer “[s]o you’re gonna let me do the
breathalyzer one more time?” The trooper responded that
“[w]e’re past that bridge. We’re past it.” The trooper read
Henry the implied consent notice again, after which
Henry said “so you are saying I can take, my blood, my
blood, my doctor can do my blood test and all that?” The
trooper responded to Henry’s question by stating, “I need
a yes or a no right now. I did not ask anything about your
doctor. I said the State. Yes or no.” Henry’s response on
the dash camera video is inaudible. The trooper then
asked Henry “[i]s that a yes?,” and Henry’s response is
again inaudible on the dash camera video. Although it is
not discernable on the video, the trooper testified that
Henry consented to a blood test in a soft voice.

Henry’s blood was drawn at the jail, and testing
performed by the GBI concluded that Henry’s blood
alcohol concentration was 0.085 grams per 100 milliliters
of blood, with a variance, or margin of error, of plus or
minus 0.004. Henry was charged by accusation of driving
under the influence of alcohol per se, driving under the
influence of alcohol to the extent he was less safe, failure
to maintain a lane, and failure to dim headlights. Prior to

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 trial, Henry’s counsel secured an order to obtain
additional independent testing of Henry’s blood, but no
additional testing was performed. Henry was convicted of
driving under the influence per se and failure to dim
lights, and he was acquitted of driving under the
influence to the extent he was less safe and failure to
maintain lane. Henry timely filed a motion for new trial,
which the trial court denied following an evidentiary
hearing.

Henry, 355 Ga. App. at 217-218.

Henry appealed the trial court’s denial of his motion for new

trial to the Court of Appeals, arguing, among other things, that his

counsel had provided constitutionally ineffective assistance by

failing to object to the admission of the blood test performed by the

GBI because Henry had been denied his right to independent

chemical testing upon request. Relying on the “reasonably could”

standard set forth in Ladow, the Court of Appeals reversed the trial

court’s denial of the motion for new trial, agreeing that Henry’s trial

counsel was ineffective for failing to object to the introduction of the

blood test result on the basis that Henry was denied the independent

testing he requested. See Henry, 355 Ga. App. at 220 (2). We granted

the State’s petition for certiorari to review the standard set forth in

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Ladow.

2. In its analysis of Henry’s ineffective assistance claim, the

Court of Appeals held that his trial counsel performed deficiently by

failing to file a motion to suppress the blood test results and that

Henry was prejudiced because admission of the blood test results

allowed the State to establish that Henry was driving under the

influence. See Henry, 355 Ga. App. at 221-222 (2). See also

Strickland v. Washington, 466 U. S. 668, 687 (104 SCt 2052, 80 LE2d

674) (1984) (to prevail on a claim of ineffective assistance of counsel,

the defendant must show that his counsel’s performance was

professionally deficient and that he was prejudiced as a result – that

is, that but for the deficiency, there is a reasonable probability of a

more favorable outcome at trial). The court further held that it could

not “revisit” the “reasonably could” standard established by Ladow

because the standard “was in place at the time of Henry’s trial, and

thus it is the standard which governs our analysis about the

reasonableness of trial counsel’s performance.” Henry, 355 Ga. App.

at 221 (2) n.5.

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 It is true that trial counsel cannot be judged deficient for failing

to either attempt to change or anticipate changes in the law. See

Esprit v. State, 305 Ga. 429, 438 (826 SE2d 7) (2019) (“A criminal

defense attorney does not perform deficiently when he fails to

advance a legal theory that would require an extension of existing

precedents and the adoption of an unproven theory of law.” (citation

and punctuation omitted)); Rhoden v. State, 303 Ga. 482, 486 (813

SE2d 375) (2018) (“[T]here is no requirement for an attorney to

prognosticate future law in order to render effective representation

. . . . Counsel is not obligated to argue beyond existing precedent.”

(citations and punctuation omitted)). However, a defendant is not

normally prejudiced by his lawyer’s failure to pursue a legal

argument that appeared to have merit at the time but is later

determined to be meritless due to a subsequent change or

development in the law. See Lockhart v. Fretwell, 506 U. S. 364, 372

(113 SCt 838, 122 LE2d 180) (1993); see also Hillman v. Johnson,

297 Ga. 609, 614 (2) (b) (774 SE2d 615) (2015) (petitioner cannot

show Strickland prejudice from counsel’s failure to challenge

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sentences based on Court of Appeals cases later determined to be

incorrect). Instead, the prejudice component of the Strickland test

“focuses on the question whether counsel’s deficient performance

renders the result of the trial unreliable or the proceeding

fundamentally unfair[,]” and “[u]nreliability or unfairness does not

result if the ineffectiveness of counsel does not deprive the defendant

of any substantive or procedural right to which the law entitles him.”

Lockhart, 506 U. S. at 372. Thus, the Court of Appeals erred in

holding that it could not reconsider its Ladow standard in this case,

and the fact that the State asked this Court to overrule Ladow and

its progeny in the context of an ineffective assistance of counsel

claim does not bar us from doing so.

3. We turn now to the question of whether Ladow’s “reasonably

could” standard is proper.

(a) Our analysis of the Ladow standard begins by reviewing the

text of the statutes applicable to this case. Driving under the

influence of drugs, alcohol, and certain other substances is generally

prohibited under OCGA § 40-6-391. OCGA § 40-6-392 (a) provides

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that

[u]pon the trial of any civil or criminal action or
proceeding arising out of acts alleged to have been
committed by any person in violation of Code Section 40-
6-391, evidence of the amount of alcohol or drug in a
person’s blood, urine, breath, or other bodily substance at
the alleged time, as determined by a chemical analysis of
the person’s blood, urine, breath, or other bodily
substance shall be admissible.

Thus, OCGA § 40-6-392 (a) creates a general rule of admissibility for

the sort of tests it identifies. A separate paragraph of that Code

section provides for independent testing at the option of a suspect.

Under subsection (a) (3), a person who is subjected to chemical

testing by the State

may have a physician or a qualified technician, chemist,
registered nurse, or other qualified person of his own
choosing administer a chemical test or tests in addition to
any administered at the direction of a law enforcement
officer. The justifiable failure or inability to obtain an
additional test shall not preclude the admission of
evidence relating to the test or tests taken at the direction
of a law enforcement officer[.]

This paragraph provides for additional, independent chemical

testing, but it further provides that even when an additional test is

not conducted, evidence from a test performed at the behest of the

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State shall not be excluded where the failure or inability to obtain

an additional test was “justifiable.” The statute therefore indicates

a strong preference for the admissibility of the state-administered

chemical test.

In this case, the State has argued that Henry failed to make a

request for independent testing, suggesting that the officer did not

understand such a request had been made. The question before us,

then, is whether the State’s failure to obtain additional testing for

this reason was “justifiable.”

In determining whether the State’s failure to obtain additional,

independent chemical testing was indeed “justifiable,” we look first

to the plain language of the statute and consider it in accordance

with its original public meaning. “When we consider the meaning of

a statute, we must presume that the General Assembly meant what

it said and said what it meant.” (Citation and punctuation omitted.)

Deal v. Coleman, 294 Ga. 170, 172-173 (1) (a) (751 SE2d 337) (2013).

That presumption means that

we must afford the statutory text its plain and ordinary

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 meaning, we must view the statutory text in the context
in which it appears, and we must read the statutory text
in its most natural and reasonable way, as an ordinary
speaker of the English language would.

(Citations and punctuation omitted.) Id.

While the term “justifiable” is not explicitly defined in OCGA §

40-6-392 (a) (3), the context of the statute’s language makes clear

that the “justifiable failure or inability to obtain an additional test”

refers to the officer’s failure or inability to obtain the additional test,

not the defendant’s. Thus, it is the officer’s conduct that must be

justified in order for the State’s test to be admissible.

As commonly understood at the time the statute was passed by

the General Assembly in 1983,1 “justifiable” meant “capable of being

justified” – that is, excusable, in the sense of having a good and

lawful reason. See Webster’s Ninth New Collegiate Dictionary 656

(9th ed. 1983) (defining “justifiable” as “capable of being justified,”

and defining “justified” in this context as “to show to have had

sufficient legal reason”); The American Heritage Dictionary 695 (2d

1 See Ga. L. 1983, p. 1000, § 14.
11
College ed. 1982) (defining “justifiable” as “capable of being

justified,” and defining “justified” in this context as “to demonstrate

a good reason for (an action taken)”). See also Sandifer v. U.S. Steel

Corp., 571 U. S. 220, 227-228 (III) (A) (134 SCt 870, 187 LE2d 729)

(2014) (noting that, “unless otherwise defined, words will be

interpreted as taking their ordinary, contemporary, common

meaning” at the time the legislature enacted a statute and that

reviewing dictionaries from the era of the statute’s enactment may

assist in determining its meaning (citation and punctuation

omitted)).

While there may be various excuses or reasons that could

justify a law enforcement officer’s failure or inability to obtain

additional, independent chemical testing, the only relevant excuse

at issue here is a law enforcement officer’s explanation that the

officer did not understand that the defendant wanted such testing.

When a reasonable officer would understand that a suspect has

requested an additional, independent chemical test but ignores that

request, that failure is not justifiable. But when a reasonable officer

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would not understand that a suspect has made a request for

additional, independent chemical testing, the failure to obtain such

testing is justifiable. An officer does not unjustifiably fail to obtain

an additional, independent chemical test when a suspect makes only

an unclear, ambiguous, or equivocal statement that could have been,

with the benefit of hindsight, interpreted as a request for additional

testing. See, e.g., Wright v. State, 338 Ga. App. 216, 228 (789 SE2d

424) (2016) (Peterson, J., concurring). Whether a clear request was

made is determined by examining the words used by the suspect,

the context of the conversation between the officer and the suspect

regarding chemical testing, and other circumstances relevant to

whether or not the suspect expressed a desire for such testing.

(b) Our view of what is justifiable in this context is similar to

the evaluation of how clearly a suspect must invoke his or her right

to counsel during a custodial interview. A suspect’s request for

counsel must be made “sufficiently clearly that a reasonable police

officer in the circumstances would understand the statement to be a

request for an attorney” in order for the suspect to invoke his or her

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Fifth Amendment right to counsel during a custodial interrogation

following the giving of Miranda warnings.2 Davis v. United States,

512 U. S. 452, 459 (II) (114 SCt 2350, 129 LE2d 362) (1994). In those

circumstances, the court considers whether the suspect made a

request clearly and unambiguously so as to avoid “transform[ing]

the Miranda safeguards into wholly irrational obstacles to

legitimate police investigative activity[.]” Id. at 460 (II). As we have

stated before, the bright-line rule also is more easily “applied by

officers in the real world” without hampering their legitimate law

enforcement activity. Green v. State, 291 Ga. 287, 292 (4) (728 SE2d

668) (2012) (citing Davis, 512 U. S. at 461 (II)).

(c) In Ladow, the Court of Appeals stated that a suspect

invokes his “right to have an additional, independent chemical test

or tests administered” when he or she makes “some statement that

reasonably could be construed, in light of the circumstances, to be

an expression of a desire for such test.” (Emphasis supplied.) 256

2 See Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694)
(1966).
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Ga. App. at 728. The Court of Appeals went on to conclude that the

suspect’s statement at issue in that case “sufficiently articulated her

desire to have an additional, independent test such that a law

enforcement officer reasonably would have understood her

statement to be a request for one.” (Emphasis supplied.) Id. at 729.

Later Court of Appeals cases disregarded the concluding language

in Ladow and instead focused on the earlier “reasonably could”

language from Ladow in determining whether additional,

independent chemical testing had been requested. See Sigerfoos v.

State, 350 Ga. App. 450, 452-453 (1) (829 SE2d 666) (2019); Wright,

338 Ga. App. at (1) (b); Farmer v. State, 335 Ga. App. 679, 680-682

(782 SE2d 786) (2016); Avery v. State, 311 Ga. App. 595, 595-599 (1)

(716 SE2d 729) (2011); England v. State, 302 Ga. App. 12, 14-15 (1)

(689 SE2d 833) (2009); Waterman v. State, 299 Ga. App. 630, 631-

633 (683 SE2d 164) (2009); Mathis v. State, 298 Ga. App. 817, 818

(1) (681 SE2d 179) (2009); Fowler v. State, 294 Ga. App. 864, 865-

866 (1) (a) (670 SE2d 448) (2008); Collins v. State, 290 Ga. App. 418,

420-421 (2) (659 SE2d 818) (2008); Brooks v. State, 285 Ga. App. 624,

15
626-628 (647 SE2d 328) (2007); Anderton v. State, 283 Ga. App. 493,

494-495 (1) (642 SE2d 137) (2007); State v. Gillaspy, 270 Ga. App.

111, 112-113 (605 SE2d 835) (2004); Johnson v. State, 261 Ga. App.

633, 636-637 (2) (583 SE2d 489) (2003).3 But the phrase “reasonably

could” from Ladow was not anchored in the text of OCGA § 40-6-392

(a) (3) or the case law on which it relied.

In developing what has now been labeled as the Ladow

standard, the Court of Appeals relied on Church v. State, 210 Ga.

App. 670, 671 (1) (436 SE2d 809) (1993). However, that case does not

contain any language resembling the “reasonably could” standard.

In Church, during field sobriety tests following a DUI stop and

before the officer read the implied consent notice, the defendant

stated, “If you were going to arrest me would you take like a blood

test; still you would put me in jail and I would still go to jail for DUI,

3 The earlier cases focused on the “reasonably could” language without
explanation. The Court of Appeals in Wright noted the “reasonably would”
language employed in Ladow’s conclusion and acknowledged that it was
“unclear” whether the “reasonably could” standard was part of Ladow’s
holding. 338 Ga. App. at 221. However, the court ultimately concluded that it
was bound by the subsequent cases applying the “reasonably could” standard.
See id.
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right?” Id. at 671. After the officer administered a second alco-sensor

test and read the implied consent warnings to the defendant, he

arrested the defendant. After the officer advised the defendant of

her right to an independent test, the defendant responded “it won’t

matter and you know that.” Id. The Court of Appeals concluded that

her questions and statements regarding a blood test did not

constitute a request for an independent test because she was

clarifying the procedure that would be followed if she was arrested.

See id. The court did not delineate what, if any, standard it used to

determine that the defendant’s statement was not a request for an

independent test, but concluded, citing Magher v. State, 199 Ga.

App. 508, 508 (1) (405 SE2d 327) (1991), that the defendant “did not

effectively communicate to the officers any desire for an additional

test[.]” Church, 210 Ga. App. at 671.

Like Church, however, Magher does not include any language

resembling the Ladow standard. In Magher, the Court of Appeals

ruled in favor of the State as to whether the defendant had

requested an independent test, and similarly concluded that the

17
trial court did not err in finding that the defendant “did not

effectively communicate to the officers any desire for an additional

test.” Magher, 199 Ga. App. at 508 (1). Thus, it is not clear how the

standard announced in Ladow was based on the Court of Appeals’

decisions in Church and Magher.

(d) Nothing in Ladow and its progeny undermines our analysis

of the proper standard for determining if an officer’s failure to obtain

an additional, independent chemical test was “justifiable.” We

therefore reject the “reasonably could” standard set forth by the

Court of Appeals in Ladow, and we overrule Ladow and all other

decisions of the Court of Appeals holding that a suspect’s right to an

additional, independent test is invoked by a statement to a law

enforcement officer that “reasonably could” – rather than

“reasonably would” – be construed as an expression of a request for

such a test, including the cases cited in Division 3 (c) above. Because

Henry’s claim of ineffective assistance of counsel was considered by

the Court of Appeals under the wrong standard, we reverse the

judgment of the Court of Appeals and remand this case for

18
reconsideration of the ineffective assistance of counsel claim under

the proper standard and for further proceedings consistent with this

opinion.

Judgment reversed and case remanded. All the Justices concur.

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