State v. Randall

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia

Decided: October 25, 2022

S22A0664. THE STATE v. RANDALL.

ELLINGTON, Justice.

Antonio Randall stands accused in the State Court of Athens-

Clarke County of driving under the influence of alcohol to the extent

that it was less safe for him to drive, OCGA § 40-6-391 (a) (1), and

other traffic offenses. The trial court granted Randall’s motion to

suppress evidence of his refusal to submit to a warrantless blood test

on the ground that Georgia’s Implied Consent statutes violate a DUI

defendant’s due process rights by allowing blood test refusal

evidence to be admitted against the defendant at trial. The State

appealed.1

1Provided specified procedural requirements are satisfied, as they were
here, “[a]n appeal may be taken by and on behalf of the State of Georgia from
the superior courts . . . [f]rom an order, decision, or judgment excluding any . . .
evidence to be used by the state at trial[.]” OCGA § 5-7-1 (a) (5).
 On appeal, the parties are in agreement that the evidence is

admissible for the limited purpose of explaining the absence of

evidence of blood test results. Consequently, it was not necessary for

the trial court to consider in this case whether admitting blood test

refusal evidence for other purposes against DUI defendants is

constitutional. Because a trial court should consider a challenge to

the constitutionality of a statute only when necessary to resolve the

merits of the case at bar, we vacate the trial court’s order granting

Randall’s motion to suppress.

The material facts, as developed at the hearing on Randall’s

motion to suppress, are undisputed. On April 6, 2021, an Athens-

Clarke County police officer initiated a traffic stop after observing

Randall’s vehicle failing to maintain its lane while traveling on

College Station Road. During the traffic stop, the officer smelled the

odor of alcohol when Randall spoke to him and observed that

Randall had glassy eyes and difficulty with balance when he exited

the vehicle. The officer arrested Randall for DUI, read Randall the

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statutory Implied Consent notice for drivers aged 21 years and over,2

and requested that Randall submit to a blood test. Randall refused

to submit to a blood test, and no test was performed.

In Randall’s brief in support of his motion to suppress in the

trial court, he argued that using a defendant’s exercise of his right

to refuse a warrantless search against him at trial as evidence of

consciousness of guilt constitutes punishment for exercising a

plainly available constitutional right and thereby violates a

defendant’s due process rights under the United States Constitution

and the Georgia Constitution. After a hearing, the trial court

granted in part Randall’s motion to suppress and excluded any

evidence of his refusal to consent to the requested blood test.3 The

trial court reasoned that,

to the extent that OCGA § 40-5-67.1 informs a person that
refusing to submit to blood testing may be offered as
evidence against them at trial, it needlessly and
unnecessarily chills a defendant’s exercise of the
constitutional right to refuse a warrantless search. To the
extent that OCGA § 40-6-392 (d) allows that evidence to

2 See OCGA §§ 40-5-55 (a); 40-5-67.1 (b) (2).
3 The trial court denied Randall’s motion to suppress evidence gathered
during the traffic stop other than his refusal of the requested breath test.
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 be admitted at trial, it impermissibly and unduly burdens
a defendant’s exercise of the right to refuse warrantless
blood testing. Therefore, to that extent, OCGA § 40-5-67.1
and OCGA § 40-6-392 (d) violate a defendant’s due
process rights guaranteed by both the United States and
Georgia Constitutions.[4]

1. On the admissibility of blood test refusal evidence, the State

asserts on appeal that the public is broadly aware of DUI

investigation procedures and expects that blood alcohol testing is

done in every DUI case. The State maintains that its purpose in

introducing evidence that Randall refused a blood test is to explain

to the jury why the State is not offering test results into evidence.5

4 Both sections provide that blood test refusal evidence is admissible
against a defendant at trial. See OCGA §§ 40-5-67.1 (b) (If a statutory Implied
Consent notice “is used by a law enforcement officer to advise a person of his
or her rights regarding the administration of chemical testing, . . . the refusal
to submit to a test of such person’s blood . . . shall be admitted into evidence
against such person.”); 40-6-392 (d) (“In any criminal trial, the refusal of the
defendant to permit a chemical analysis to be made of his blood . . . at the time
of his arrest shall be admissible in evidence against him.”).
5 See Wessels v. State, 169 Ga. App. 246 (312 SE2d 361) (1983). In

Wessels, the Court of Appeals held that there was then no statutory bar to the
admission of refusal evidence. The court noted that
the danger to the public safety posed by the drunk driver has been
repeatedly and intensely brought to the awareness of the citizens
of Georgia, through the media as well as through . . . statutes
[enacted in 1983] providing for stricter enforcement of [DUI] laws
and harsher punishment for their infraction. As a result, the public
is generally aware of the standard procedures attendant to arrest

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Randall, on the other hand, challenges the admissibility of test

refusal evidence broadly as substantive evidence of guilt, that is,

evidence of “guilty knowledge” and “consciousness of guilt.” In

Randall’s brief on appeal, he states that he does not argue that all

evidentiary consequences of refusing a blood test are

unconstitutional, pointing to a Virginia statute providing that a DUI

suspect’s unreasonable refusal to permit a blood or breath test shall

be admissible into evidence for the sole purpose of explaining the

absence at trial of a chemical test and not as evidence of the

defendant’s guilt.6

for this offense, i.e., that chemical tests are administered by law
enforcement authorities to ascertain the suspect’s level of
intoxication. It logically follows that in a trial for the offense of
[DUI], where the state produces no evidence of such test results,
the inference raised in the minds of the jurors is that the defendant
submitted to the test which resulted in a reading lower than that
deemed to show intoxication. To the extent of negation of this
inference, evidence of refusal to take the test is indeed relevant
and admissible. Further, the defendant may in the course of trial
offer explanation for such refusal.
Id. at 247 (2) (citation omitted).
6 Va. Code Ann. § 18.2-268.10 (C) provides:

Evidence of a finding against the defendant under § 18.2-268.3 for
his unreasonable refusal to permit a blood or breath sample to be
taken to determine the alcohol or drug content of his blood shall be
admissible into evidence, upon the motion of the Commonwealth

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 “Properly enacted statutes carry a presumption of

constitutional validity, and inquiry into the constitutionality of a

statute generally should not be made by the trial courts if a decision

on the merits can be reached without doing so.” State v. Brannan,

267 Ga. 315, 317 (477 SE2d 575) (1996). Here, the parties’ briefing

in the trial court led the trial court to issue a ruling on the merits of

Randall’s argument that, to the extent that OCGA §§ 40-5-67.1 (b)

and 40-6-392 (d) allow for the introduction of evidence against an

accused in a DUI prosecution, they violate state and federal due

process guarantees. But clarification of the parties’ positions in

appellate argument has made the constitutional ruling by the trial

court on the admissibility of blood test refusal evidence unnecessary.

The trial court’s order is vacated in this respect. We emphasize that,

in vacating the trial court’s ruling in this case, we express no opinion

or the defendant, for the sole purpose of explaining the absence at
trial of a chemical test of such sample. When admitted pursuant to
this subsection such evidence shall not be considered evidence of
the accused’s guilt.
See Va. Code Ann. § 18.2-268.3 (establishing a civil offense of unreasonable
blood or breath test refusal).
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about the important and difficult constitutional questions that

remain unresolved.

Through these proceedings, the State has restricted itself to

using refusal evidence in this case only for the limited purpose of

explaining the absence of test results. Thus, the State may not seek

a jury instruction authorizing the jury to draw any other inference

from Randall’s blood test refusal.7 Whether Randall will wish to

7 The pattern instruction, which is frequently given, provides:
A person accused of driving under the influence of alcohol to
the extent that he/she was less safe has the right to refuse to
submit to (field sobriety exercises) (an Alco-Sensor) (chemical tests
of his/her blood, breath, or urine) requested by the law enforcement
officer.
Should you find that the defendant refused to take the
requested test, you may infer that the test would have shown the
presence of (alcohol) (drugs), though not that the (alcohol) (drugs)
impaired his/her driving. Whether or not you draw such an
inference is for you to determine.
This inference may be rebutted.
The inference alone is not sufficient to convict the defendant.
Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 2.84.21 (4th
ed., 2022). See State v. Frost, 297 Ga. 296, 304-305 (773 SE2d 700) (2015) (A
trier of fact may infer from a defendant’s refusal of a chemical test that, if the
accused had submitted to the test, it would have shown some presence of an
intoxicant.); Taylor v. State, 278 Ga. App. 181, 183 (3) (628 SE2d 611) (2006)
(holding no error resulted from the argument that the defendant refused the
requested chemical test because she was conscious of her impairment or guilt);
Kelly v. State, 242 Ga. App. 30, 34 (5) (528 SE2d 812) (2000) (concluding it was
not unreasonable to infer from a DUI suspect’s refusal to submit to a State-
administered test to determine her blood alcohol content that “her refusal

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have the jury instructed regarding the limited purpose for which

refusal evidence is admitted is an issue the trial court will take up

at the proper time.

2. As noted above, in addition to ruling on the constitutionality

of admitting blood test refusal evidence against a defendant, the

trial court ruled that, to the extent that the Implied Consent notices

set out in OCGA § 40-5-67.1 (b) inform a person that refusing to

submit to blood testing may be offered as evidence against him at

trial, OCGA § 40-5-67.1 (b) needlessly and unnecessarily chills a

defendant’s exercise of the constitutional right to refuse a

warrantless search.8 Although Randall challenged the

stemmed from a fear that the results would be unfavorable – i.e., that she was
conscious of her impairment or guilt”).
8 OCGA § 40-5-67.1 (b) provides: “At the time a chemical test or tests are

requested [of a person suspected of DUI], the arresting officer shall select and
read to the person the appropriate implied consent notice” set out in the Code
section. For suspects aged 21 or over, the notice reads:
The State of Georgia has conditioned your privilege to drive upon
the highways of this state upon your submission to state
administered chemical tests of your blood, breath, urine, or other
bodily substances for the purpose of determining if you are under
the influence of alcohol or drugs. If you refuse this testing, your
Georgia driver’s license or privilege to drive on the highways of this
state will be suspended for a minimum period of one year. Your

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constitutionality of OCGA § 40-5-67.1 (b) in the trial court on the

grounds that allowing admission of his refusal to submit to the blood

test to show consciousness of guilt violated his constitutional rights,

see Division 1, supra, Randall did not challenge the statute on the

basis that the text of the Implied Consent notices chill a defendant’s

exercise of the constitutional right to refuse a warrantless search.

The trial court should not have expanded the scope of its review of

the constitutionality of the statute, beyond that raised by the

challenger himself. See Brannan, 267 Ga. at 317. Accordingly, the

trial court’s ruling on that issue is also vacated.

Judgment vacated. All the Justices concur.

refusal to submit to blood or urine testing may be offered into
evidence against you at trial. If you submit to testing and the
results indicate an alcohol concentration of 0.08 grams or more,
your Georgia driver’s license or privilege to drive on the highways
of this state may be suspended for a minimum period of one year.
After first submitting to the requested state tests, you are entitled
to additional chemical tests of your blood, breath, urine, or other
bodily substances at your own expense and from qualified
personnel of your own choosing. Will you submit to the state
administered chemical tests of your (designate which test)?
OCGA 40-5-67.1 (b) (2).
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