Court of Appeals
of the State of Georgia

                                         ATLANTA,____________________
                                                  December 27, 2017

The Court of Appeals hereby passes the following order:

A18I0079. BRYANT CULLENS v. THE STATE.

      Bryant Cullens filed this application for interlocutory appeal seeking appellate
review of the trial court’s order denying his motion in limine. Specifically, the trial
court found that Cullens had not met his burden of proving that OCGA § 40-6-392
(d) is unconstitutional.1 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); see
also Zarate-Martinez v. Echemendia, 299 Ga. 301, 304 (2) (788 SE2d 405) (2016).
Because it appears the trial court rejected Cullens’ challenge to the constitutionality
of OCGA § 40-6-392 (d), jurisdiction over this application 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




      1
         In violation of this Court’s rules, Cullens did not include a copy of the motion
he filed in the trial court. See Court of Appeals Rule 30 (e). From the trial court’s
order, it appears that Cullens refused to submit to a state-administered breath test and
was subsequently charged with driving under the influence. Cullens filed a motion
in limine seeking to exclude evidence of his refusal, apparently arguing that the
Supreme Court’s recent decision in Olevik v. State __ Ga. __ (Case Number
S17A0738, decided Oct. 16, 2017) requires exclusion of the evidence.
SE2d 587) (1996), this application is hereby TRANSFERRED to the Supreme Court
for disposition.

                                   Court of Appeals of the State of Georgia
                                          Clerk’s Office, Atlanta,____________________
                                                                    12/27/2017
                                          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.
