Georgia v. Henry
Annotate this CaseWhen this case was before the Court of Appeals, the State argued that Kemar Henry failed to make a request for additional, independent chemical testing pursuant to OCGA 40-6-392(a)(3). The Court of Appeals stated that a request for additional testing is lawfully asserted when a suspect has made some statement that “reasonably could be construed, in light of the circumstances, to be an expression of a desire for such test.” The Court of Appeals applied the “reasonably could” standard in the context of evaluating a claim of ineffective assistance of counsel predicated on counsel’s failure to object to the admission of a blood test conducted by the Georgia Bureau of Investigation (GBI) where the State allegedly failed to honor Henry’s request for independent chemical testing. In its analysis, the Court of Appeals held that Henry’s statements met the “reasonably could” standard. The Georgia Supreme Court granted certiorari to consider whether the Court of Appeals set forth the proper standard for determining when a person accused of driving under the influence has invoked his or her right to additional, independent chemical testing under OCGA 40-6-392(a)(3). The Supreme Court was unpersuaded that the standard established by the Court of Appeals for making this determination was consistent with the text and context of the statute, and rejected it in favor of a “reasonably would” standard, and overruled Ladow v. Georgia, 569 SE2d 572 (2002) and all other decisions of the Court of Appeals that applied the “reasonably could” standard. Accordingly, the Court of Appeals’ judgment here was reversed and the case remanded for further proceedings.
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