State v. Henry

A Georgia State Patrol trooper stopped Kemar Henry, arrested him for driving under the influence, and had his blood tested by the state. Henry made some ambiguous statements about wanting his own doctor to test his blood, but no independent test was ever performed. He was convicted based partly on the state's blood test, and later argued his trial lawyer should have objected because he had asked for independent testing and been denied it. The Court of Appeals had used a rule asking only whether Henry's words 'reasonably could' be read as a request for testing, and ruled his lawyer was ineffective for not objecting. The Supreme Court of Georgia disagreed with that legal test, holding that Georgia's DUI testing law asks instead whether a reasonable officer 'reasonably would' have understood the words as a clear request. Because the wrong standard was used, the court sent the case back for the Court of Appeals to decide Henry's ineffective-assistance claim again under the correct test.

The court held that under OCGA § 40-6-392(a)(3), an officer's failure to obtain independent testing is only unjustifiable, and thus the state's test excludable, when a suspect's words were clear enough that a reasonable officer would understand them as a request for testing, not merely words that could plausibly be read that way.

The ruling changes how clearly a Georgia DUI suspect must speak to secure independent blood or breath testing, affecting police procedure statewide, prosecutors' ability to use state test results, and defense lawyers evaluating whether to challenge those results in court.

Reversed and remanded

1. The court examined Georgia's DUI testing statute (OCGA § 40-6-392(a)(3)), which generally allows state chemical test results into evidence but excuses that admission only if the failure to provide an independent test the suspect requested was not 'justifiable.'
2. Looking at dictionaries from 1983 when the law was passed, the court found 'justifiable' meant having a good, lawful reason, and concluded this describes the officer's conduct, meaning the officer's failure to arrange testing is excused unless a reasonable officer would have understood a clear request was made.
3. The court compared this to the rule for invoking the right to a lawyer during police questioning (from the Miranda safeguards case Davis v. United States), where a suspect must speak clearly enough that a reasonable officer would recognize the request, rather than merely ambiguous statements a lawyer might later argue could be read that way.
4. Reviewing the Court of Appeals' 2002 decision in Ladow v. State, the court found its 'reasonably could' standard was never actually rooted in the cases it cited and conflicted with the statute's text, so the court rejected that looser standard and overruled Ladow and the many later Court of Appeals decisions applying it.
5. Because the Court of Appeals had judged Henry's ineffective-assistance-of-counsel claim using the incorrect 'reasonably could' standard, the Supreme Court of Georgia concluded the case needed to be reexamined under the correct 'reasonably would' standard.

• DUI blood test
• independent chemical testing
• ineffective assistance of counsel
• implied consent
• Court of Appeals overruled