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The Georgia Supreme Court has recently come down with two very important decisions in regards to similar transactions and the Prosecution’s ability to use those cases against Defendants at trial. Those cases are State v. Frost, S14G1767, and In State v. Frost, S14G1767 (June 15, 2015), the trial court permitted the State under O.C.G.A. § 24-4-417 to present evidence at trial that Frost had driven under the influence of alcohol on two prior occasions and refused state-administered testing.

The Court of Appeals disagreed with the trial court, finding that the evidence was not relevant to prove knowledge. Frost v. State, 328 Ga.App. 337, 342-344 (2) (2014). Relying on Professor Milich’s opinion, the Court of Appeals found that Rule 417 was adopted to address only one “specific situation”:

“[A] case in which the accused refused a stateadministered test required by O.C.G.A. § 40-5-55, and in which the accused offers evidence at trial to suggest that his refusal is attributable to a lack of knowledge, misunderstanding, inadvertence, accident, or mistake, and in which the State has evidence not only that the accused has driven under the influence on other occasions, but also that the accused on those same occasions actually was asked to submit and did submit to a state administered test, and in which the State offers that evidence of driving under the influence on other occasions to rebut the suggestion of the accused by showing that his refusal in the present case was not, in fact, owing to a lack of knowledge, misunderstanding, inadvertence, accident, or mistake.” (Emphasis in original).

The Georgia Supreme Court granted the State’s petition for writ of certiorari and reversed. The Supreme Court found that in a DUI prosecution, evidence of other DUIs may be admitted by way of two sections of the new Evidence Code: Rule 417 and Rule 404 (b). And just as it did under Rule 404 (b) in Jones v. State, 326 Ga.App. 658 (2014) (Jones I) rev’d by State v. Jones, ___ Ga. ___ (2) (Case No. S14G1061, decided June 1, 2015) (Jones II), the Court of Appeals in this case took too narrow a view of Rule 417. Thus, the Court noted, although Rule 417 may have a far more limited application than Rule 404 (b), nevertheless, it too was a “rule of inclusion.” Therefore, the Court found, the “specific situation” that Rule 417 (a) (1) was enacted to address is precisely that situation identified explicitly in the text of Rule 417 (a) (1): a case in which “[t]he accused refused . . . to take the state administered test required by Code Section 40-5-55.” Regardless of whether a defendant disputes the reasons for his refusal, such a situation presents special problems of proof for the prosecution. When an accused refuses the required test, his refusal generally is admissible, and a trier of fact may infer from such a refusal that, if the accused had submitted to the test, it would have shown some presence of an intoxicant. Such an inference, however, is permissive, not mandatory, and even in the absence of any evidence from the accused to explain or excuse his refusal, the trier of fact may decline to draw any inference at all.

Consequently, the Court stated, proof that the accused on prior occasions had driven under the influence of the same or a similar intoxicant may strengthen substantially the inference about the presence of an intoxicant. First, it might properly be inferred from evidence of prior occasions on which the defendant had driven under the influence that the accused had awareness that his ingestion of an intoxicant impaired his ability to drive safely. Such awareness, in turn, would offer an explanation for why the defendant refused the test on this occasion, namely, that he was conscious of his guilt and knew that the test results likely would tend to show that he was, in fact, under the influence of a prohibited substance to an extent forbidden by O.C.G.A. § 40-6-391(a). Second, prior DUIs also could permit an inference in some circumstances that the defendant had acquired knowledge about the means by which law enforcement officers determine whether and to what extent a driver is under the influence of an intoxicant, and such awareness likewise might help to explain a refusal in the present case to submit to a test. In either event, the trier of fact might well conclude that an adverse inference about the presence of an intoxicant is more warranted than it otherwise would be, and the trier of fact might decide that the inference can bear more weight than it otherwise could. This is true when the accused refused the required tests on the prior occasions, and it is true even when the accused offers no evidence to explain or excuse his refusal on this occasion. Accordingly, the Court concluded, the trial court did not abuse its discretion when it found that the evidence that Frost had driven under the influence on two prior occasions was “relevant to prove knowledge” and therefore, would be admissible under Rule 417 (a) (1). In so holding, the Court noted that the Court of Appeals also relied on Jones I and held that the same evidence would not be admissible under Rule 404 (b) either. Since the Court concluded that this evidence is admissible under Rule 417, it was not necessary to consider whether it also might be admitted under Rule 404 (b). But, the Court stated, “[G]iven its reliance on Jones I, the Rule 404 (b) analysis of the Court of Appeals in this case is not sound.” The Court also “left for another day” any question about the extent to which Rule 403 applies to Rule 417.
The second case that came down from the Supreme Court that addressed similar transactions was Jones v. State. In State v. Jones, S14G1061 (June 1, 2015), the State charged Jones with DUI (less safe) and DUI (per se). The trial court allowed the State to offer into evidence a prior DUI conviction under O.C.G.A. § 24-4-404(b) (“Rule 404(b)”) for the limited purpose of showing knowledge and intent. The Court of Appeals found that the trial court erred because DUI is a general intent crime and no culpable mental state was required to commit general intent crimes. Thus, because the charged crimes do not require a defendant to act with a specific intent to commit the crimes, the fact that Jones voluntarily or intentionally drove under the influence of alcohol on another occasion was of no relevance. Jones v State, 326 Ga.App. 658 (2014). The Supreme Court granted the State a writ of certiorari and reversed. Citing Bradshaw v. State, 296 Ga. 650, 656 (2015), the Court stated that in order to be admissible as a prior bad act, the State must make a showing that 1) evidence of extrinsic, or other, acts is relevant to an issue other than a defendant’s character (Rule 404(b)); 2) the probative value of the other acts evidence is not substantially outweighed by its unfair prejudice (Rule 403); and 3) there is sufficient proof so that the jury could find that the defendant committed the act in question. The Court of Appeals erred in determining that the evidence did not meet the first prong of the Bradshaw test. First, the Court held, the Court of Appeals erred by failing to give legal significance to the State’s burden of proving as an essential element Jones’ general intent to do the prohibited acts. Intent was a material issue in Jones’ DUI case because the State had the burden of proving beyond a reasonable doubt Jones’ 1) intent 2) to drive 3) with a blood alcohol content of 0.08 or higher and his 1) intent 2) to drive 3) under the influence of alcohol 4) to the extent he was a less safe driver. And because the same state of mind was required for committing the prior act and the charged crimes, i.e., the general intent to drive while under the influence of alcohol, evidence of Jones’ prior conviction was relevant under Rule 404(b) to show Jones’ intent on this occasion. Second, although the State was not required to prove Jones knew that he was driving less safe or with an illegal blood alcohol level, “the relevancy of his prior conviction evidence was heightened by his defense in which he vehemently challenged the State’s allegation that he was under the influence of alcohol and argued that his physical reactions and poor performance on field tests, behavior which he claims the officer misconstrued as evidence of his being under the influence of alcohol, were attributable to the fact that he had previously suffered a serious head trauma.” Thus, the Court found “[a] genuine issue regarding whether Jones was voluntarily driving while under the influence of alcohol was raised by this defense, making evidence that he had voluntarily driven under the influence of alcohol on a previous occasion all the more relevant because it tended to show that it was more likely that he intentionally did so on this occasion.” Furthermore, the Court added, “[t]he relevancy of evidence of a prior state of mind and the introduction of evidence of repetitive conduct to allow a jury to draw logical inferences about a defendant’s knowledge and state of mind from such conduct is well-established.” Accordingly, the Court concluded, “other acts evidence may be relevant under Rule 404(b), without regard to whether the charged crime is one requiring a specific or general intent, when it is offered for the permissible purpose of showing a criminal defendant’s intent and knowledge.” In so holding, the Court noted that because the Court of Appeals erred in making a determination that the evidence did not fit the first prong of the Bradshaw test, it did not consider the evidence under the second prong of the test.

The Court therefore remanded the case back to the Court of Appeals for this purpose. But, the Court cautioned, “Our holding … does not signify that evidence of other acts will be admissible in every criminal prosecution to prove intent and knowledge.” The danger of prejudice in such evidence is ever-present and the trial court should take great care to make an independent determination in each case as to whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. Nevertheless, the Court noted, Rule 403 is an extraordinary remedy which should be used sparingly and in close cases, the balance under Rule 403 should be struck in favor of admissibility.