Kyle H. Jarzmik Law
Prior Bad Acts in DUI Cases
Prior Bad Acts: Who knew Intent and Knowledge are Such a Big Deal in DUI Cases?
This past month, the Supreme Court of Georgia overruled the Court of Appeals in two cases that had almost completely prevented the State from introducing evidence of a defendant's prior DUI's at trial when charged with DUI. The contrast in reasoning between the Court of Appeals of the Supreme Court is striking, and changes the prosecution and defense of repeat DUI offenders significantly.
In State v. Jones, a Cherokee County jury convicted Jones of a 2011 DUI, and part of the State's evidence against Jones was his prior 2005 DUI conviction. Case No. SG14G1061. Because the trial took place after January 1, 2013, the new Georgia evidence code applied. The trial court had to determine whether Jones' prior conviction was admissible under O.C.G.A. 24-4-404 (b). The State argued that the 2005 DUI was relevant for the purpose of proof of Jones' intent and knowledge for the 2011 DUI. The trial judge agreed, and the 2005 DUI was admitted into evidence at trial.
Jones appealed the admission into evidence of the prior conviction, and the Court of Appeals agreed. The Court of Appeals reversed the trial court ruling, holding that because DUI is a general intent crime, and no culpable mental state was required to commit the crime[s] in the first place Jones v. State, 326 Ga. App. 658 (2014). That is, the State only had to prove that Jones had the intent to drive, not the intent to drive while under the influence. Nor did they have to prove that he knew (i.e."knowledge") he was under the influence or impaired while he was driving.
The Supreme Court reversed the ruling of the Court of Appeals. It used the three part test adopted in Bradshaw v. State to determine the admissibility of evidence under 404(b). 296 Ga. 650 (2015). In order for evidence to be admissible under 404 (b), the State must show:
- Evidence of extrinsic acts is relevant to an issue other than the defendant's character,
- The probative value of the other acts evidence is not substantially outweighed by its unfair prejudice, AND
- There is sufficient proof so that the jury could find that the defendant committed the act in in question.
For the first prong, The Court explained that Rule 404 (b) is an evidentiary rule of inclusion which recognizes the relevancy of other acts offered for a permissible purpose. Prior acts cannot be offered solely to show a defendant‚Äôs bad character or propensity to commit a crime. Furthermore, the State still has to prove general intent in DUI cases, so intent is a material issue. In important footnote 4, the Court stated that, defendant put his intent at issue when he pled not guilty unless he takes affirmative steps to withdraw intent as an element to be proved by the State.
Regarding the issue of knowledge, the Court explained that the State need not prove that Jones knew he was driving with an illegal blood alcohol concentration and introducing a prior bad act to prove he knew he was driving impaired would be harmless error because it would only increase the State's burden. And it was relevant to show intent, as just discussed.
And this case specifically, knowledge became relevant because Jones challenged the field sobriety evaluation results as being caused by his previous head trauma, not alcohol consumption. Therefore, Jones raised the issue of whether he voluntarily drove under the influence.
Regarding the second prong of the Bradshaw test, the Supreme Court remanded the case back to the Court of Appeals (which never considered this factor because it held that the prior DUI was irrelevant) to determine whether the probative value of Jones‚Äô prior DUI is not substantially outweighed by its unfair prejudice, confusion of the issues, misleading the jury, or considerations of undue delay, waste of time, or needless presentation of cumulative evidence. See O.C.G.A. ¬ß 24-4-403.
While the Court cautioned that the potential for prejudice caused by admitting evidence of other or prior acts is great, it indicated that several factors should be considered by a trial court in admitting prior acts. A common sense assessment includes consideration of prosecutorial need, the similarity of the pending crime and the prior act, and the amount of time elapsed between the acts (citation omitted). The Court did cite case law which stating that excluding evidence under this balancing test should be done sparingly because it‚Äôs an extraordinary remedy to exclude probative evidence. See United States v. Merrill, 513 F.3d 1293 (11th Cir. 2008) Furthermore, the Court indicated that in close cases, the balance should lean in favor of admitting the evidence of the prior bad act(s). See United States v. Terzado-Madruga, 897 F2d 1099 (11th Cir. 1990).
In State v. Frost, the defendant was convicted at trial after his two prior DUI convictions were introduced as evidence at trial under O.C.G.A. ¬ß 24-4-417 because Frost refused to take the State administered test in the instant case and the trial court ruled that they were relevant to prove knowledge. The Court of Appeals overturned that ruling, taking a narrow view of knowledge and using similar reasoning regarding the relevancy of knowledge to DUI as they did in Jones.
The Georgia Supreme Court reversed the Court of Appeals and reinstated the trial court's ruling, holding that the trial court did not abuse its discretion in admitting the prior acts. Case No. S14G1767. Rule 417 (a)(1) states that the evidence shall be admissible when the statutory requirements are met, which is more presumptive in favor of admission than Rule 404 (b), which states that the evidence may be admissible. If a defendant refuses the state administered test, there is a permissive, NOT mandatory inference that the trier of fact can infer that the test would have shown the presence of the intoxicant. But that inference is limited to the presence of the intoxicant. There is no inference that the intoxicant caused impairment.
The Court states "It might be properly inferred from evidence of prior occasions on which the accused had driven under the influence that the accused had an awareness that his ingestion of an intoxicant impaired his ability to drive safely. Such awareness, in turn, would offer an explanation for the why the accused 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)."
The Court also explained that evidence of prior DUI's raises the inference that Frost had an awareness that the consumption of alcohol impaired his driving ability. Furthermore, those prior acts can raise the inference that the defendant acquired knowledge about how police determine if a person is driving under the influence, which can explain why the person refused to submit to a test. This is true regardless of whether the person consented or refused to the tests in the prior cases, and regardless of whether he tries to explain or excuse his refusal in the current case.
So, it looks like most prior DUI's will be admissible against defendants in DUI trials, assuming the State can still get the witness(es) in court. While the Jones case is still pending with the Court of Appeals, it appears that for now, attorneys must be prepared for how to handle a client's prior DUI if they decide to go to trial.
Note: There are no formal citations yet for the Jones and Frost cases.