Court of Appeals

of the State of Georgia

ATLANTA,____________________

The Court of Appeals hereby passes the following order:

A22A0489. THE STATE v. WHITMAN.

In the above-styled appeal, the State challenges the trial court’s grant of Marty

D. Whitman’s motion to suppress evidence of his refusal to engage in pre-arrest field

sobriety tests. On appeal, the State argues the trial court erred by suppressing

Whitman’s refusal to undergo such testing when, inter alia, the court improperly

applied Georgia case law, and because field sobriety tests do not violate the right

against self-incrimination under either the federal or state constitutions. But we lack

jurisdiction to consider the state constitutional question presented in this appeal. 

Indeed, the Supreme Court of Georgia has exclusive jurisdiction over “all cases

in which the constitutionality of a law, ordinance, or constitutional provision has been

drawn in question.”1Additionally, our Supreme Court has

interpreted this jurisdictional provision to extend only to constitutional

issues . . . that do not involve the application of unquestioned and

unambiguous constitutional provisions or challengesto laws previously

held to be constitutional against the same attack.

2

1 Zarate-Martinez v. Echemendia, 299 Ga. 301, 304 (2) (788 SE2d 405) (2016)

(punctuation omitted); accord Fox v. Norfolk S. Corp., 342 Ga. App. 38, 43 (1) (802

SE2d 319) (2017).

2

State v. Davis, 303 Ga. 684, 687 (1) (814 SE2d 701) (2018) (punctuation

omitted); see City of Atlanta v. Columbia Pictures Corp., 218 Ga. 714, 719 (4) (130

SE2d 490) (1963) (explaining that the Supreme Court of Georgia “will never pass

upon constitutional questions unlessit clearly appearsin the record that the point was

directly and properly made in the [trial] court below and distinctly passed upon by the

June 06, 2022
Put another way, our Supreme Court has held that

[t]he Court of Appeals has limited jurisdiction to review constitutional

questions. It has jurisdiction over cases that involve the application, in

a general sense, of unquestioned and unambiguous provisions of the

Constitution to a given state of facts and that do not involve construction

of some constitutional provision directly in question and doubtful either

under its own terms or under the decisions of the Supreme Court of

Georgia or the Supreme Court of the United States.

3

Here, the Supreme Court of Georgia has not ruled on the precise constitutional

question presented as applied to the facts of this case, i.e., whether the refusal to

engage in pre-arrest field sobriety tests may be used against a defendant at trial

without violating Paragraph XVI of the Georgia Constitution, which provides that

“[n]o person shall be compelled to give testimony tending in any manner to be

self-incriminating.”4

In Keenan v. State,

5

the Supreme Court of Georgia quoted this Court’s opinion

in Lankford v. State6

 to conclude that a defendant’s pre-arrest refusal to undergo an

alco-sensor test was not a “violation of appellant’s right not to incriminate himself

under the [F]ifth amendment, the Georgia Constitution, or OCGA § 24-9-20, because

he was not in custody at the time the field sobriety test was requested.”7 But Keenan

otherwise made no analysis of the Georgia Constitution, never mentioning Paragraph

trial judge”).

3 Davis, 303 Ga. at 687-88 (1) (punctuation omitted).

4 GA. CONST. art. I, § 1, ¶ XVI.

5

 263 Ga. 569 (436 SE2d 475) (1993).

6

 204 Ga. App. 405 (419 SE2d 498) (1992).

7 Keenan, 263 Ga. at 571 (2) (punctuation omitted) (quoting Lankford, 204 Ga.

App. at 406 (2)).
XVI, and instead focused the entirety of its analysis on the federal constitution and

OCGA § 24-9-20. In short, it does not appear that the Georgia Constitution was at

issue in Keenan, making this brief mention of it non-binding dicta.8 And therefore the

Supreme Court has neither considered nor explicitly ruled on whether Paragraph XVI

of the Georgia Constitution bars use as evidence at trial of a defendant’s pre-arrest

refusal to undergo an alco-sensor breath test or, by extension, other types of field

sobriety tests (e.g., the horizontal gaze nystagmus, the walk and turn), which are at

issue in this appeal.

9

The Supreme Court has recently issued opinions regarding post-arrest refusal

to engage in compelled acts that are intended to gauge a defendant’s level of

intoxication.

10 But again, with no clear holding on the issue in Keenan, the Supreme

8

See Alexander v. State, __ Ga. __, __ (3) (870 SE2d 729) (2022) (“[D]icta is

not binding on anyone for any purpose.” (punctuation omitted)); Walker v. State, 290

Ga. 696, 700 (2) n.3 (723 SE2d 894) (2012) (“Dicta is binding on neither the bench

nor the bar[.]”); Zepp v. Brannen, 283 Ga. 395, 397 (658 SE2d 567) (2008)

(explaining that dicta is “a statement in an opinion concerning some rule of law or

legal proposition not necessarily involved nor essential to determination of the case

in hand,” and that courts “are not bound to follow . . . dicta in a prior case [when] the

point now at issue was not fully debated” (citation & punctuation omitted)).

9 But see Aldrich v. State, 220 Ga. 132, 133 (137 SE2d 463) (1964) (holding

Georgia law that required truck driver to drive truck onto scales to assess whether

truck and cargo exceeded the weight and measurements provided by another Georgia

law “would be compelling him to produce evidence tending to incriminate him” in

violation of Paragraph XVI of the Georgia Constitution).

10

See Awad v. State, 313 Ga. 99, 99 (868 SE2d 219) (2022) (“Under the

reasoning of Olevik and Elliott, we hold that the right against compelled

self-incrimination protected byParagraph XVI prohibitstheState fromadmitting into

evidence a defendant’srefusal to urinate into a collection container as directed by the

State for purposes of providing a urine sample for chemical testing.”); Elliott v. State,

305 Ga. 179, 223 (IV) (E) (824 SE2d 265) (2019) (“[W]e conclude that Paragraph

XVI precludes admission of evidence that a suspect refused to consent to a [postarrest] breath test.”); Olevik v. State, 302 Ga. 228, 252 (3) (b) (806 SE2d 505) (2017)

(“Paragraph XVI protects against compelled breath tests and affords individuals a
Court still has not considered whether pre-arrest field sobriety tests are compelled

acts such that the refusal to engage in them may not be used against a defendant at

trial.

11 And indeed, the Supreme Court recently granted an application for

interlocutory appeal to answer this very question.

12

Because the Supreme Court has not explicitly addressed the particular

constitutional question presented in this appeal, we cannot say that the issue is

unquestioned and unambiguous, and under such circumstances, we lack jurisdiction

to consider it. Thus, we hereby transfer this appeal to the Supreme Court of Georgia.

Court of Appeals of the State of Georgia

Clerk’s Office, Atlanta,____________________

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.

constitutional right to refuse testing.”).

11 But see State v. Bradberry, 357 Ga. App. 60 (849 SE2d 790) (2020) (“We

recognize that the issue before us involves an alco-sensor preliminary breath test,

rather than the type of breathalyzer breath tests involved in Elliott and Olevik.

Nevertheless, we do not find that distinction to be controlling since the evidence

plainly shows that [the defendant] would have been required to perform the

affirmative act of blowing into the alco-sensor device for a sustained period of time.

Because [the defendant] had the right to refuse to provide incriminating evidence by

performing such an affirmative act under Paragraph XVI, the admission of evidence

of his refusal violates the state constitutional right against self-incrimination.”).

12

See Ammons v. State, Case No. S22I0281, Order (Dec. 9, 2021) (granting

application for interlocutory appeal).

06/06/2022