                                SECOND DIVISION
                                  MILLER, P. J.,
                              PIPKIN and COLVIN, JJ.

                    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.
                               https://www.gaappeals.us/rules

                    DEADLINES ARE NO LONGER TOLLED IN THIS
                    COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
                    THE TIMES SET BY OUR COURT RULES.


                                                                      June 29, 2020



In the Court of Appeals of Georgia
 A18A0771. THE STATE v. VOYLES.

      PIPKIN, Judge.

      In State v. Voyles, 345 Ga. App. 634 (814 SE2d 767) (2018) (physical

precedent only), this Court reversed the trial court’s denial of the State’s motion to

introduce evidence of Trenton Voyles’ prior driving under the influence (“DUI”)

violations pursuant to a notice of intent filed under OCGA § 24-4-417 and a separate

notice filed under OCGA §§ 24-4-403 and 24-4-404 (b). Voyles filed a petition for

certiorari to the Supreme Court of Georgia, and on July 1 2019, the court granted the

petition, vacated our opinion and remanded the case back to us for reconsideration

in light of Elliott v. State, 205 Ga. 179 (824 SE2d 265) (2019), which held evidence

of a defendant’s refusal to submit to a State-administered breath test may not be

admitted against him or her at a criminal trial. Id. at 223 (IV) (E). See Voyles v. State,
2019 GA LEXIS 464 (July 1, 2019). In light of Elliott, we now affirm to the extent

that the trial court excluded evidence of Voyles’ prior refusal to take a State-

administered breath test but remand to the trial court for further proceedings on the

admissibility of the other prior acts evidence as more fully set forth below.

      As set out in our prior opinion, on May 1, 2015, Voyles was arrested and

charged with a violation of OCGA § 40-6-391. The State filed a notice of intent to

introduce evidence of Voyles’ three prior DUI arrests and convictions that occurred

within four years of the May 2015 arrest. During two of the prior incidents, Voyles

submitted to a State-administered blood test, but in the other one, which occurred on

May 15, 2011, he refused to submit to a State-administered breath test. Voyles, 345

Ga. App. at 634. In two of the prior incidents, Voyles entered guilty pleas to DUI and

in the other incident, he pleaded guilty to reckless driving. Id.

      After first finding that the evidence of prior offenses “may well have some

relevance,” the trial court denied the State’s request to introduce the evidence of the

three prior arrests on the grounds that the danger of unfair prejudice substantially

outweighed the probative value of the evidence under OCGA § 24-4-403. This Court

reversed, concluding that the probative value of Voyles’ prior DUI arrests

substantially outweighed the prejudice in admitting the evidence, “not the other way

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around[.]” Voyles, 345 Ga. App. at 637. In our analysis, we did not distinguish

between the prior arrests, and we specifically did not consider whether the evidence

that Voyles refused to submit to a State-administered breath test during the May 15,

2011 incident stood on a different footing from the evidence in the other two

incidents where he submitted to a State-administered blood test.

      In Olevik v. State, 302 Ga. 228 (806 SE2d 505) (2017), the Supreme Court of

Georgia held that the protection against compelled self-incrimination provided by

Article I, Section I, Paragraph XVI of the Georgia Constitution of 1983 affords a DUI

suspect the right to refuse a State-administered breath test. Subsequently, and after

we issued our decision in Voyles, the Supreme Court of Georgia specifically

addressed the issue of whether a defendant’s refusal to submit to a breath test may be

admitted into evidence at a subsequent criminal trial and squarely held that it may not.

Elliott v. State, 305 Ga. 179, 223 (IV) (E) (824 SE2d 265) (2019). Accordingly, to the

extent the State sought to introduce evidence that Voyles refused to submit to the

State’s breath test, the trial court’s order denying the State’s request must be affirmed.

      However, as the special concurrence in Elliott points out, the holdings of

Olevik and Elliott are limited to chemical tests of a driver’s breath, not tests of a

driver’s blood.” (Emphasis in original), 305 Ga. at 224 (Boggs, J, concurring fully

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and specially). In State v. Johnson, 354 Ga. App. 447, 454 (1) (b) (841 SE2d 91)

(2020), this Court also addressed whether Olevik and Elliott prohibited admission of

a suspect’s refusal to consent to blood testing, and held that it did not. Id. Further, this

Court also found that even where the accused has refused to consent to a State-

administered breath test, “evidence of the existence of the arrest and other attendant

circumstances, excluding the evidence rendered inadmissible by Elliott, may be

introduced at . . . trial . . . .” Id. at 453 (1) (a).

       Here, the trial court assumed the relevance of the case without specifically

addressing that issue. Because the trial court did not have the benefit of the analysis

of Elliott and Johnson, it did not parse out the evidence and did not conduct the

analysis that a trial court is now required to undergo when faced with both

inadmissible evidence of a suspect’s refusal to take a breath test, and other acts

evidence that may be admissible under OCGA § 24-4-404 or OCGA § 24-4-417. See

Johnson, 354 Ga. App. at 453, 454, 457 (1) (a) & (b) and (2). Further, these

considerations also impact whether the evidence satisfies the requirements of OCGA

§ 24-4-403, i.e., the probative value of the evidence is not substantially outweighed

by its unfair prejudice. We therefore affirm the trial court’s order as to the exclusion

of Voyles’ prior refusal to take a State-administered breath test. We vacate the order

                                                4
as to Voyles’ prior consents to blood tests and as to his May 11, 2015 arrest,

references to which should not include Voyles’ refusal to take a breath test, and we

remand the case for further proceedings consistent with this opinion.

      Judgment affirmed in part and vacated and remanded in part. Miller, P. J., and

Colvin, J., concur.




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