Court of Appeals
of the State of Georgia

                                         ATLANTA,____________________
                                                  August 17, 2018

The Court of Appeals hereby passes the following order:

A18A1093. THE STATE v. JOHNSON.

      The State appeals from the trial court’s order finding that “Paragraph XVI of
the Georgia Constitution or the Fourth Amendment of [the] United States
Constitution precludes the State from using Mr. Johnson’s refusals [to submit to a
state-administered breath or blood test], in [a prior] 2010 arrest or the current cases
against him at trial.” In its first enumeration of error, the State contends that “[t]he
trial court’s at-issue order demonstrates that the trial court erred as a matter of law by
holding that the Georgia and United States Constitutions preclude ‘the State from
using [Appellee’s] r[e]fusals, in the 2010 arrest or the current cases, against
[Appellee] at trial’[.] . . .” The Supreme Court of Georgia “has exclusive jurisdiction
over all cases involving construction of the Constitution of the State of Georgia and
of the United States and all cases in which the constitutionality of a law, ordinance,
or constitutional provision has been called into question.” Atlanta Independent School
System v. Lane, 266 Ga. 657, 657 (1) (469 SE2d 22) (1996) (citing Ga. Const. of
1983, Art. VI, Sec. VI, Par. II (1)). While the Supreme Court does not have exclusive
jurisdiction over cases that “involve merely the application of well-known
constitutional principles,” Turner v. State, 176 Ga. 823 (169 SE 21) (1933), it does
not appear that the Supreme Court of Georgia has addressed the discrete
constitutional question presented here. We note that while the Supreme Court
recognized in Olevik v. State, 302 Ga. 228, 246 (2) (iv) (806 SE2d 505) (2017), that
the Georgia Constitution preserves a criminal defendant’s right to refuse to submit
to chemical tests, it did not address whether the admission of such a refusal into
evidence violates the Georgia Constitution. Additionally, our decision in MacMaster
v. State, 344 Ga. App. 222 (809 SE2d 478) (2018), addressed only whether the
admission of a refusal to take a preliminary breath test violated the Fourth
Amendment, not Paragraph XVI of the Georgia Constitution. Id. at 230 (1) (d). See
also Cherry v. State, 345 Ga. App. 409, 411-412 (1) (813 SE2d 408) (2018) (holding
that trial court did not err in admitting evidence of defendant’s refusal to take a breath
test because defendant’s refusal was not the exercise of the constitutional right
against unreasonable searches and seizures where test was permitted as a search
incident to arrest). And our decision in State v. Council, 343 Ga. App. 583 (807 SE2d
504) (2017), has been vacated by the Supreme Court of Georgia in Council v. State,
Case No. S18C0494, decided May 21, 2018. Finally, the Supreme Court of Georgia
has granted a writ of certiorari in a similar case to address the issue presented in this
case. See Elliott v. State, Case No. S17C0716, order entered April 17, 2018.
      Additionally, we note that OCGA § 40-6-392 (d) provides: “In any criminal
trial, the refusal of the defendant to permit a chemical analysis to be made of his
blood, breath, urine, or other bodily substance at the time of his arrest shall be
admissible in evidence against him.” Because the trial court ruled, in essence, that
OCGA § 40-6-392 (d) is unconstitutional as applied to Johnson, it appears that an
additional ground might exist for jurisdiction in the Supreme Court. See Malloy v.
State, 293 Ga. 350, 353 (1) (744 SE2d 778) (2013) (“this Court has jurisdiction over
appellant’s claim that the trial court erred in rejecting his constitutional challenge to
OCGA § 49-4-146.1 (b) (2) [the Medicaid fraud statute] as applied . . .”).
      As the Supreme Court has the ultimate responsibility for determining appellate
jurisdiction, 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,____________________
                                 08/17/2018
       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.
