Certiorari to the Court of Appeals of Georgia -- 328 Ga.App. 337.
Barry E. Morgan, Solicitor-General, Deborah M. Tatum, Emily B. Keener, Assistant Solicitors-General, for appellant.
George C. Creal, Jr., for appellee.
BLACKWELL, Justice. All the Justices concur.
This case concerns the meaning of paragraph (a) (1) of OCGA § 24-4-417 (" Rule 417" ), which provides:
In a criminal proceeding involving a prosecution for a violation of Code Section 40-6-391, evidence of the commission of another violation of Code Section 40-6-391 on a different [297 Ga. 297] occasion by the same accused shall be admissible when ... [t]he accused refused in the current case to take the state administered test required by Code Section 40-5-55 and such evidence is relevant to prove knowledge, plan, or absence of mistake or accident ... .
Gary Frost was charged with driving under the influence of alcohol to the extent that he was less safe to drive, see OCGA § 40-6-391 (a) (1), and at the time of his arrest, he refused to submit to a state-administered breath test required by OCGA § 40-5-55 (a). The State gave notice of its intent to present evidence at trial that Frost had driven under the influence of alcohol on two prior occasions. Frost objected to this evidence, but the trial court determined that it was relevant to prove knowledge and, therefore, would be admissible under Rule 417 (a) (1). Frost appealed, and the Court of Appeals disagreed with the trial court, finding that the evidence was not relevant to prove knowledge. See Frost v. State, 328 Ga.App. 337, 342-344 (2) (761 S.E.2d 875) (2014). We issued a writ of certiorari to consider whether the Court of Appeals misconstrued Rule 417 (a) (1). We conclude that the Court of
Appeals did misconstrue the statute, and we reverse its judgment as to the admissibility of evidence that Frost had driven under the influence of alcohol on the two prior occasions.
The record in this case shows that the concierge at a condominium complex in Cobb County heard a loud noise early on the morning of June 24, 2012, and upon looking at a security monitor, he saw that a car had struck an entry gate and was proceeding into the complex. The concierge called 911, and he then went in search of the car. When he found it, he observed that Frost was in the driver's seat, the engine was running, the windows were down, and music was playing loudly. Three police officers arrived on the scene shortly thereafter, and they confirmed that the car was damaged in a way consistent with it having struck the entry gate. The officers observed that Frost still was in the driver's seat, and they took notice that he was wearing no shirt and drinking from a bottle of wine. The officers detected a strong odor of alcohol, and they repeatedly asked Frost to exit the car. Frost, however, did not comply with these requests and instead appeared oblivious to the fact that police officers were attempting to speak with him. Frost eventually acknowledged the officers and exited the car, but he refused to perform any field sobriety tests [297 Ga. 298] or an alco-sensor breath test. The officers insisted pursuant to OCGA § 40-5-55 that Frost submit to a chemical test to detect the presence of alcohol, but he refused. Frost was arrested and charged with driving under the influence of alcohol to the extent he was less safe, among other offenses.
The State proposed to present evidence at trial that Frost had driven under the influence of alcohol in Cobb County on two occasions in 2009. On both occasions, Frost refused state-administered tests to detect the presence of alcohol. And on one of these occasions, Frost was found in the early morning hours sleeping in the driver's seat of a parked car with music " blasting" from the car speakers, circumstances remarkably similar to the circumstances of this case. As a result of the 2009 incidents, Frost was convicted of two counts of driving under the influence of alcohol.
As we noted earlier, the trial court determined that this evidence would be admissible under Rule 417 (a) (1) because it was relevant to show knowledge, but the Court of Appeals disagreed. In its opinion, the Court of Appeals adopted a narrow view of the " knowledge, plan, or absence of mistake or accident" that may be proved with evidence admitted under the statute. To identify the circumstances in which evidence of driving under the influence on other occasions might be relevant to show " knowledge, plan, or absence of mistake or accident," the Court of Appeals looked to the commentary of Professor Paul S. Milich, 328 Ga.App. at 343 (2), who has written that Rule 417 (a) (1) was enacted to address a " specific situation" :
[W]hen the defendant took and failed the [state-administered] test in the prior DUI and the defendant refused the test in the subject case, if the defendant at trial attempts to suggest that he did not take the test because he did not understand it, or he did not know that he could take a test, or that he would never take such a test, the prior DUI in which the defendant took and failed the test would be admissible to prove " knowledge, plan, or absence of mistake or accident."
Paul S. Milich, Ga. Rules of Evidence § 11:16 (2014-2015). The Court of Appeals then noted that the record in this case did not show that Frost likely would offer any explanation or excuse at trial for his failure to take the state-administered test in 2012, and in any event, [297 Ga. 299] Frost had refused on both occasions in 2009 to take the state-administered tests. 328 Ga.App. at 343 (2). Consequently, the Court of Appeals concluded, Rule 417 (a) (1) " would not apply under the ...