Michael Christopher Dodson v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ December 20, 2018

The Court of Appeals hereby passes the following order: A18A1770. MICHAEL CHRISTOPHER DODSON v. THE STATE.

We granted interlocutory review of the trial court’s order denying Michael Christopher Dodson’s motion to suppress the results of a breath-alcohol test. One of the arguments made by Dodson in his motion was that the implied consent statute, OCGA § 40-5-67.1 (b), violated the provision of Georgia’s Constitution prohibiting a person from being “compelled to give testimony tending in any manner to be self- incriminating.” Ga. Const. of 1983, Art. I, Sec. I, Par. XVI. In a September 7, 2017 order, the trial court rejected this argument and held that the implied consent statute did not violate Georgia’s Constitution. The trial court cited Klink v. State, 272 Ga. 605 (533 SE2d 92) (2000), in support of that conclusion. The following month, in Olevik v. State, 302 Ga. 228, 244-246 (2) (c) (iv) (806 SE2d 505) (2017), our Supreme Court overruled Klink “to the extent [it held] that Paragraph XVI of the Georgia Constitution does not protect against compelled breath tests[.]” Nevertheless, the Supreme Court rejected the defendant’s challenges to OCGA § 40-5-67.1 (b). Olevik, 302 Ga. at 246-252 (3). The facts in this appeal are similar but not identical to those in Olevik because Dodson does not have a Georgia driver’s license. The Supreme Court has exclusive appellate jurisdiction in “all cases in which the constitutionality of a law, ordinance, or constitutional provision has been drawn in question.” Ga. Const. of 1983, Art. VI, Sec. VI, Par. II (1). Because the trial court rejected Dodson’s challenge to the constitutionality of OCGA § 40-5-67.1 (b) in reliance on a decision subsequently overruled in Olevik, and the facts in this case are not fully analogous to those in Olevik, jurisdiction over this appeal may lie in the

Supreme Court. As the Supreme Court has the ultimate responsibility for determining appellate jurisdiction, see Saxton v. Coastal Dialysis & Med. Clinic, 267 Ga. 177, 178 (476 SE2d 587) (1996), this appeal is hereby TRANSFERRED to the Supreme Court for disposition. Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 12/20/2018 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.