                              SECOND DIVISION
                               ANDREWS, P. J.,
                         MILLER, P.J., and BRANCH, J.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                    February 5, 2016




In the Court of Appeals of Georgia
 A15A1808. THE STATE v. TITTLE.

      BRANCH, Judge.

      In this DUI case, the State appeals from an order of the trial court that prohibits

the State from introducing the defendant’s prior DUI conviction as part of its case in

chief. Finding that the trial court’s ruling conflicts with the Georgia Supreme Court’s

recent decision in State v. Frost, 297 Ga. 296 (773 SE2d 700) (2015), we reverse.

      The relevant facts are undisputed and the record shows that on May 9, 2014,

a car driven by Joshua Tittle was involved in a single-car accident in Clayton County.

The responding officer detected a strong odor of alcohol coming from Tittle’s person

and observed that Tittle’s speech was slurred. Tittle admitted that he had consumed

alcoholic beverages at some point before driving, and he performed poorly on a field

sobriety test administered by the officer. The officer arrested Tittle and read him
Georgia’s implied consent notice,1 but Tittle refused to submit to any chemical

testing. Tittle was subsequently indicted on one count each of failure to maintain lane

and DUI less safe.2



      1
      The applicable implied consent notice for suspects age 21 or over is set forth
in OCGA § 40-5-67.1 (b) (2) and states:

             “Georgia law requires you to submit to state administered
      chemical tests of your blood, breath, urine, or other bodily substances
      for the purpose of determining if you are under the influence of alcohol
      or drugs. If you refuse this testing, your Georgia driver’s license or
      privilege to drive on the highways of this state will be suspended for a
      minimum period of one year. Your refusal to submit to the required
      testing may be offered into evidence against you at trial. If you submit
      to testing and the results indicate an alcohol concentration of 0.08 grams
      or more, your Georgia driver’s license or privilege to drive on the
      highways of this state may be suspended for a minimum period of one
      year. After first submitting to the required state tests, you are entitled to
      additional chemical tests of your blood, breath, urine, or other bodily
      substances at your own expense and from qualified personnel of your
      own choosing. Will you submit to the state administered chemical tests
      of your (designate which tests) under the implied consent law?”
      2
        See OCGA § 40-6-391 (a) (1) (making it illegal for “[a] person [to] drive or
be in actual physical control of any moving vehicle while . . . [u]nder the influence
of alcohol to the extent that it is less safe for the person to drive”).


                                           2
      Prior to trial, the State filed notice of its intent to offer into evidence Tittle’s

2006 conviction for DUI. The State intended to offer that evidence pursuant to OCGA

§ 24-4-417, which provides, in relevant part:

      In a criminal proceeding involving a prosecution for a violation of Code
      Section 40-6-391, evidence of the commission of another violation of
      Code Section 40-6-391 on a different occasion by the same accused
      shall be admissible when . . . [t]he accused refused in the current case to
      take the state administered test required by Code Section 40-5-55 and
      such evidence is relevant to prove knowledge, plan, or absence of
      mistake or accident.


OCGA § 24-4-417 (a) (1).

      Tittle opposed the admission of this evidence and following a hearing, the trial

court ruled that the prior DUI conviction could not be introduced as part of the State’s

case in chief. Relying on this Court’s decision in Frost v. State, 328 Ga. App. 337

(761 SE2d 875) (2014) (“Frost I”), the trial court concluded that Tittle’s prior DUI

conviction could be introduced only if, during the presentation of his defense, Tittle

attempted “to suggest that he did not take the test because he did not understand it,

or he did not know that he could take a test, or that he would never take such a test.”

Frost I, 328 Ga. App. at 343 (2) (citation and punctuation omitted). Under those

circumstances, the State could introduce Tittle’s prior DUI conviction only in

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rebuttal, “to show [Tittle’s] knowledge, plan or absence of mistake or accident.” Id.

The State now appeals from the trial court’s order.

      After the parties filed their briefs in this case, the Georgia Supreme Court

issued its decision in State v. Frost (“Frost II”), which reversed the Frost I decision

relied upon by the trial court. Frost, 297 Ga. at 305-306. The Supreme Court held that

the Georgia Evidence Code allows the State to introduce a defendant’s prior DUI

conviction as part of its case in chief in any DUI prosecution “in which ‘the accused

refused . . . to take the state administered test required by Code Section 40-5-55,’”

because such evidence is, at the very least, relevant to prove knowledge. Id. at 303,

quoting OCGA § 24-4-417 (a) (1). In reaching this conclusion, the Court noted that

a defendant’s refusal to submit to the state mandated-chemical tests “generally is

admissible, see OCGA § 40-6-392 (d), and a trier of fact may infer from such a

refusal that, if the accused had submitted to the test, it would have shown some

presence of an intoxicant.” Id. at 304. The Court then explained:

      Proof that the accused on prior occasions had driven under the influence
      of the same or a similar intoxicant may strengthen substantially the
      inference about the presence of an intoxicant. This is so because, as we
      noted in [State v. Jones, 297 Ga. 156 (773 SE2d 170) (2015) (“Jones
      II”)], it might properly be inferred from evidence of prior occasions on
      which the accused had driven under the influence that the accused had

                                          4
      an awareness that his ingestion of an intoxicant impaired his ability to
      drive safely. Such awareness, in turn, would offer an explanation for
      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 OCGA § 40-6-391 (a). See Jones II, 297 Ga.
      at 159 (2) (773 SE2d 170). Prior occasions on which the accused was
      arrested and charged with driving under the influence also could permit
      an inference in some circumstances that the accused had acquired
      knowledge about the means by which law enforcement officers
      determine whether and to what extent a driver is under the influence of
      an intoxicant, and such awareness likewise might help to explain a
      refusal in the present case to submit to a test. In either event, the trier of
      fact might well conclude that an adverse inference about the presence of
      an intoxicant is more warranted than it otherwise would be, and the trier
      of fact might decide that the inference can bear more weight than it
      otherwise could. This is true when the accused refused the required tests
      on the prior occasions, and it is true even when the accused offers no
      evidence to explain or excuse his refusal on this occasion.


Id. at 305.

      Applying Frost II to the instant case, we find that OCGA § 24-4-417 (a) (1)

permits the State to introduce evidence of Tittle’s prior DUI conviction during its

case in chief. We therefore reverse the order of the trial court limiting the State’s use

of this evidence to its rebuttal case.

      Judgment reversed. Andrews, P. J., and Miller, P. J., concur.

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