THIRD DIVISION

DOYLE, P. J.,

MCFADDEN, P. J., and HODGES, J.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

https://www.gaappeals.us/rules

June 15, 2022

In the Court of Appeals of Georgia

A20A0501. HENRY v. STATE.

HODGES, Judge.

This case is back before this Court after having been remanded by the Supreme

Court of Georgia. State v. Henry, 312 Ga. 632 (864 SE2d 415) (2021) (“Henry II”).

After F. Bryant Henry was convicted for driving under the influence per se and failure

to dim lights, he appealed the denial of his motion for new trial. This Court

previously reversed that denial on the ground that Henry’s trial counsel was

ineffective for failing to seek to suppress the results of his State-administered blood

test on the basis that he was not provided the opportunity to independently test his

blood. Henry v. State, 355 Ga. App. 217, 222 (2) (843 SE2d 884) (2020) (Henry I).

Our holding was rooted in the law at the time of Henry’s trial, which provided that

“[a]n accused’s right to have an additional, independent chemical test or tests
administered is invoked by some statement that reasonably could be construed, in

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

supplied.) Ladow v. State, 256 Ga. App. 726, 728 (569 SE2d 572) (2002). Our

opinion held that, regardless of the propriety of the standard espoused by Ladow and

its progeny, it was the law at the time of Henry’s trial and it was the standard by

which we would judge the reasonableness of Henry’s counsel’s actions. Henry I, 355

Ga. App. at 221 (2), n. 5.

The Supreme Court disagreed, finding that Henry could not be prejudiced by

his counsel’s deficiency if the law which counsel failed to invoke was unsound.

Henry II, 312 Ga. at 635 (2) (finding that trial counsel cannot be found deficient for

failing to anticipate changes in the law, but holding that the issue of prejudice

“focuses on the question whether counsel’s deficient performance renders the result

of the trial unreliable or the proceeding fundamentally unfair, and unreliability 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.”)

(citation and punctuation omitted). The Supreme Court then found Ladow and its

progeny to be unsound and, as discussed further below, reversed that body of case

law and the “reasonably could” standard they utilized. Id. at 639-640 (3) (c) - (d). The

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Supreme Court reversed our opinion, and remanded the case back to this Court for

reconsideration in light of this change in the law. Id. at 640 (3) (d). Upon

reconsideration on remand, we affirm the trial court’s denial of Henry’s motion for

new trial.

In Henry II the Supreme Court adopted this Court’s recitation of the facts of

this case, which are as follows:

On 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 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 finallyprovided 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

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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

discernible 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 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. He then appealed.

(Punctuation omitted.) 312 Ga. at 633-634 (1).

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Henry arguesthat histrial counsel wasineffective in several regards, which we

will address in turn.

1 When this Court reviews a ruling on a claim of ineffective

assistance of counsel

we accept the trial court’sfactual findings and credibility determinations

unless clearly erroneous, but we independently apply the legal principles

to the facts. To prevail on a claim of ineffective assistance of trial

counsel, a defendant bears the burden of showing both that trial counsel

was deficient and that he was prejudiced by the deficiency. To

demonstrate deficient representation, a convicted criminal defendant

mustshow that counsel’srepresentation fell below an objective standard

of reasonableness.

(Citations and punctuation omitted.) Thrasher v. State, 300 Ga. App. 154 (684 SE2d

318) (2009).

a. Request for Independent Chemical Testing

As Henry II acknowledged,

Georgia law allowsthe results of chemical tests performed on the blood,

urine, breath, or other bodily substances of persons accused of driving

1 Henry also argued that OCGA § 40-6-392 is unconstitutional because it

violates his right to confront his accusers, so he originally filed his appeal in the

Supreme Court. The Supreme Courtfound this enumeration waived, and thus decided

it did not have original appellate jurisdiction over the appeal. Accordingly, the

Supreme Court transferred the case to this Court for issuance of an opinion in Henry

I.

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under the influence of alcohol, drugs, or other substancesin 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 testsin addition to any

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

additional, independent chemical test isrequested 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).

312 Ga. at 632.

At the time of Henry’strial, the law provided that “[a]n accused’s right to have

an additional, independent chemical test or tests administered is invoked by some

statement that reasonably could be construed, in light of the circumstances, to be an

expression of a desire for such test.” (Emphasis supplied.) Ladow, 256 Ga. App. at

728. As we recited in Henry I, “after Henry was read the implied consent notice and

asked to consent to a blood test for the second time, he asked the trooper, ‘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.’” 355 Ga. App.

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at 221 (2). Relying on Ladow and other cases following it, we found this statement

ambiguous and thus held that it “reasonably could” have been a request for

independent chemical testing. See id. at 220-221 (2). Accordingly, we found that

Henry’s trial counsel was ineffective for failing to move to suppress the blood result

because he made a strong showing that such a motion would have been granted. Id.

at 222 (2).

On certiorari, the Supreme Courtfound the reasoning of Ladowand its progeny

unsound. It held

[w]hile 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. . . . While there may be

various excuses or reasonsthat 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

would not understand that a suspect has made a request for additional,

independent chemical testing, the failure to obtain such testing is

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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.

Whether a clear request wasmade 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.

(Citation omitted; emphasissupplied) Henry II, 312 Ga. at 637 (3) (a). As a result, the

Supreme Court

reject[ed] the “reasonably could” standard set forth by the Court of

Appeals in Ladow, and [it] overrule[d] 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 . . . . 

Id. at 640 (3) (d).

The Supreme Court instructed us to reconsider our holding in light of Henry

II, and, in so doing we find that Henry’sstatement, though able to satisfy the previous

“reasonably could” standard for the reasons outlined in Henry I, was too ambiguous

to meet the more exacting “reasonably would” standard announced in Henry II. It is

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unclear whether Henry wasrequesting that his doctor perform the State’s test (which

the law does not permit) or requesting that his doctor perform independent testing

after the State-administered test (which the law does permit), or wassimply confused

about the testing protocol and seeking clarification. In other words, we find that a

reasonable officer would not reasonably construe Henry’s ambiguousstatement to be

a request for independent testing of his blood, so the trooper’s failure to secure

additional testing was justified. Accordingly, Henry’strial counsel was not ineffective

for failing to file a motion to suppress which, judged under the correct “reasonably

would” standard, would have been meritless. See, e.g., State v. Walker, 350 Ga. App.

168, 174 (2) (828 SE2d 402) (2019) (“it is not ineffective assistance of counsel to

refrain from making a futile motion or filing a meritless motion to suppress.”)

(citation and punctuation omitted).

b. Voluntary Consent

Henry also argues that his trial counsel was ineffective for failing to move to

suppress the blood test result on the ground that it was obtained without a warrant or

his voluntary consent. While it is undisputed that no warrant was obtained, we find

Henry’s argument about consent to be abandoned.

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Henry correctly recites law providing that courts must examine the

voluntariness of consent to a blood test under the totality of the circumstances. See

e. g. Williams v. State, 296 Ga. 817, 823 (771 SE2d 373) (2015). Henry fails to

articulate, however, anything involuntary about the consent he provided to the blood

test. He identifies nothing about his condition or the officer’s conduct to support this

enumeration. “[I]t is not this Court’s role to speculate about the legal basis for an

appellant’s argument. Nor is it the function of this Court to cull the record on behalf

of a party in search of instances of error. Therefore, inasmuch as [Henry] fails to

present any meaningful argument in support of this enumeration, it is deemed

abandoned.” (Citations and punctuation omitted.) Santoro v. State, 361 Ga. App. 546,

548 (1) (864 SE2d 719) (2021); Court of Appeals Rule 25 (c) (2).

c. Securing Additional Test of Blood

In the trial court, Henry’s initial trial counsel secured an order to permit

independent testing of Henry’s blood held by the GBI, given that the GBI’s testing

placed Henry’s blood alcohol concentration (“BAC”) at only slightly above the legal

limit when considering the testing’s margin of error. According to initial counsel’s

testimony, despite this court order, the GBI created some procedural barriers to

having the blood transmitted to an independent lab for further testing. Initial counsel

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testified that he made a strategic decision not to push back against the GBI to obtain

the blood sample because he believed there was a good chance additional testing

would come back with the same or higher BAC. He believed Henry’s defense was

stronger if he could argue that the GBI failed to assist further testing because it had

something to hide rather than actually obtaining the test results.

Henry subsequently fired initial counsel and hired new trial counsel. This

attorney testified that he did not pursue additional testing because he was informed

that initial counsel received a letter from the GBI stating that the blood was too old

to re-test. Initial counsel denied receiving such a letter. 

With regard to Henry’s initial counsel, the decision not to pursue additional

testing of the blood was clearly a strategic one.

[T]here is a strong presumption that the performance of counsel was

within the wide range of reasonable professional lawyering, and we

cannot reach a contrary conclusion unless defendantsuccessfully rebuts

the presumption by clear and convincing evidence. Judicial scrutiny of

counsel’s performance must be highly deferential. The test has nothing

to do with what the best lawyers would have done. Nor is the test even

what most good lawyers would have done. We ask only whether some

reasonable lawyer at the trial could have acted, in the circumstances, as

defense counsel acted. In determining what constitutes ineffective

assistance, a critical distinction is made between inadequate preparation

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and unwise choices of trial tactics and strategy. Particularly in regard to

matters of trial strategy and tactic, effectiveness is not judged by

hindsight or result. Indeed, decisions regarding trial tactics and strategy

may form the basis for an ineffectiveness claim only if they were so

patently unreasonable that no competent attorney would have followed

such a course. 

(Citations and punctuation omitted.) Walker v. State, 349 Ga. App. 188, 192-193 (4)

(825 SE2d 578) (2019). We do not find that it was patently unreasonable for initial

counsel not to pursue testing which could have further inculpated Henry; thus, we do

not find his representation ineffective.

With regard to Henry’s subsequent trial counsel, even assuming he based his

decision not to pursue additional blood testing on a mistaken belief that the blood was

too old to re-test as opposed to reasoned strategy, Henry cannot demonstrate

prejudice. “[P]rejudice is demonstrated only where there is a reasonable probability

that, absent counsel’s errors, the result of the trial would have been different. A

‘reasonable probability’is defined as a probability sufficient to undermine confidence

in the outcome.” (Citation omitted.) Green v. State, 358 Ga. App. 843, 852-853 (7)

(856 SE2d 427) (2021). Here, not only is it pure speculation that the results of

additional blood testing would have been exculpatory, as explained above, it is also

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possible that they would have been inculpatory. Accordingly, Henry cannot

demonstrate a reasonable probability that the result of the trial would have been

different if his blood were re-tested.

d. Obtaining the Crime Lab Testing Data

“A person shall not drive or be in actual physical control of anymoving vehicle

while . . . [t]he person’s alcohol concentration is 0.08 grams or more at any time

within three hours after such driving or being in actual physical control from alcohol

consumed before such driving or being in actual physical control ended[.]” OCGA

§ 40-6-391 (a) (5). The summary toxicology report indicated that Henry’s BAC was

.085 grams per 100 ml with a variance of +/– .004. According to the forensic

toxicologist, the variance is a summation of the variability of every step of the process

of testing the blood. She further testified that, statistically, if the test were run 100

times, 99 of those times the test results would be within the .004 variance. Here, that

would mean that she expected that 99 out of 100 tests of Henry’s blood would put his

BAC between .081 and .089. The blood is actually tested by the GBI two times. 

At trial, the forensic toxicologist testified that every week the instruments

which perform the BAC analysis are tuned. Each day they also run a sample with a

known concentration of alcohol at the beginning and end of the testing to ensure that

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the instrument is working accurately throughout the day’s testing. She testified that

the instrument used to test Henry’s blood was working on the day of his test. 

Henry’s trial counsel did not subpoena the more detailed testing data from the

GBI. After reviewing those records, post-conviction counsel examined the forensic

toxicologist at the motion for new trial hearing. There she testified thatshe performed

two tests on Henry’s blood sample, with the first registering a BAC of .0842 and the

second a .0849. The GBI’s policy is to round the results to three decimal places for

the report. On the day of testing Henry’s sample, control samples with known

quantities of alcohol were tested to ensure the instrument was working accurately.

The first control sample measured .0005 higher than the known level of alcohol and

the second controlsample measured .0002 higher than the known level. Henry’s postconviction counsel tried to get the toxicologist to agree that, as a result, Henry’sresult

could have registered as much as .0005 higher than it really was. The toxicologist

testified, however, that the difference between the known sample and its recorded

reading was within the expected results and that testing the actual blood samples

twice ensures that the results are accurate. 

Henry argues that his trial counsel was ineffective for failing to obtain this

more detailed report because if the lower test number of .00842 was used, and a

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downward deviation of .004 was applied for the margin of error, and then .0005 was

subtracted from that due to the result of one of the control samples, Henry’s BAC

would have been below the legal limit. Henry, however, did not provide any

testimony that this would be an appropriate way to analyze the data. Indeed, the only

expert testimony provided was from the forensic toxicologist, who refused to adopt

this approach and never agreed that it was possible that Henry’s BAC was below .08.

At trial and at the motion for new trial hearing, she never wavered in her confidence

about the results presented in the report, and this testimony was unrebutted.

Accordingly, Henry has not demonstrated that he was prejudiced by the failure to

obtain this more detailed testing data. See Green, 358 Ga. App. at 852-853 (7). 

In summary, upon reconsideration on remand in light of Henry II, we hold that

Henry has not demonstrated that his trial counsel was ineffective and, thus, the trial

court did not err in denying his motion for new trial.

Judgment affirmed. Doyle, P. J., and McFadden, P. J., concur.

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