Bryant Cullens v. State

Court of Appeals of the State of Georgia ATLANTA,____________________ December 27, 2017 The Court of Appeals hereby passes the following order: A18I0079. BRYANT CULLENS v. THE STATE. Bryant Cullens filed this application for interlocutory appeal seeking appellate review of the trial court’s order denying his motion in limine. Specifically, the trial court found that Cullens had not met his burden of proving that OCGA § 40-6-392 (d) is unconstitutional.1 The Supreme Court has exclusive appellate jurisdiction in “all cases in which the constitutionality of a law, ordinance, or constitutional provision has been drawn in question.” Ga. Const. of 1983, Art. VI, Sec. VI, Par. II (1); see also Zarate-Martinez v. Echemendia, 299 Ga. 301, 304 (2) (788 SE2d 405) (2016). Because it appears the trial court rejected Cullens’ challenge to the constitutionality of OCGA § 40-6-392 (d), jurisdiction over this application may lie in the Supreme Court. As the Supreme Court has the ultimate responsibility for determining appellate jurisdiction, see Saxton v. Coastal Dialysis & Med. Clinic, 267 Ga. 177, 178 (476 1 In violation of this Court’s rules, Cullens did not include a copy of the motion he filed in the trial court. See Court of Appeals Rule 30 (e). From the trial court’s order, it appears that Cullens refused to submit to a state-administered breath test and was subsequently charged with driving under the influence. Cullens filed a motion in limine seeking to exclude evidence of his refusal, apparently arguing that the Supreme Court’s recent decision in Olevik v. State __ Ga. __ (Case Number S17A0738, decided Oct. 16, 2017) requires exclusion of the evidence. SE2d 587) (1996), this application is hereby TRANSFERRED to the Supreme Court for disposition. Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 12/27/2017 I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written. , Clerk.