New Ruling From Georgia Supreme Court Has Potentially Big Impact On DUI Breath Tests

A question that the Georgia Supreme Court was recently tasked with answering dealt with self-incrimination and breath tests. The defendant in the case, Frederick Olevik, had been arrested on suspicion of DUI. He was read the “statutorily mandated, age-appropriate implied consent notice” and “agreed to submit to a state-administered breath test.” The results of his test showed that “he had a BAC of 0.113," which is above Georgia's legal limit. Later on, Olevik moved to have the results of this breath test suppressed. He contended that “his consent to the test was invalid because the language of the implied consent notice was misleading, coercing him to take the test in violation of his rights against self-incrimination.” His motion was denied by the trial court and he was convicted of several counts including DUI Less Safe. Olevik subsequently appealed his case all the way up to the Georgia Supreme Court.

In Georgia's Constitution, there is a provision that provides protection against self-incrimination. The question the Supreme Court had to answer was “whether this state constitutional protection prohibits law enforcement from compelling a person suspected of DUI to blow their deep lung air into a breathalyzer.”

The self-incrimination provision, called Paragraph XVI by the court, states, “[n]o person shall be compelled to give testimony tending in any manner to be self-incriminating.” The traditional notion of self-incrimination deals with words, that is, that the individual suspect of a crime does not have to make statements that would incriminate him or herself. However, in Georgia, the law goes further. The court stated that the precedent in the state is that the constitutional right against self-incrimination also “protected a defendant from being compelled to incriminate himself by acts.” The court elaborated: “although Paragraph XVI refers only to testimony, its protection against compelled self-incrimination was long ago construed to also cover incriminating acts and thus, is more extensive than the Supreme Court of the United States' interpretation of the right against compelled self-incrimination guaranteed by the Fifth Amendment.”

The court then looked at whether compelling a suspected DUI driver to take a breath test was a self-incriminating act. It looked at the actions that were needed in order to perform a breath test and found that more than just regular breathing was required. For a proper breath sample to be obtained, the suspect must “blow deeply into a breathalyzer for several seconds in order to produce an adequate sample.” The court pointed out that “for the State to be able to test an individual's breath for alcohol content, it is required that the defendant cooperate by performing an act.” The court reasoned that “[c]ompelling a defendant to perform an act that is incriminating in nature is precisely what Paragraph XVI prohibits.” The court continued: “whether a defendant is compelled to provide self-incriminating evidence in violation of Paragraph XVI is determined under the totality of the circumstances.”

The court then turned to Olevik's case and considered how the law applied to his particular circumstances. Olevik made several arguments concerning the implied consent notice he was read but the court found none of his arguments persuasive enough to overturn his conviction. The court stated that “[a]lthough the trial court erred in concluding that Olevik's constitutional right against compelled self-incrimination was not at issue,” the “trial court's ultimate decision that Olevik was not compelled into submitting to the breath test must be affirmed.” The trial court had “considered all relevant factors to determine the voluntariness to consent to search, and these same factors are used in determining whether an incriminating act or statement was voluntary.” The court stated that although Olevik contended that the trial court didn't consider the “coercive and misleading nature of the implied consent notice, Supreme Court had determined the notice was not per se coercive and Olevik hadn't identified any other factors that tended to show he was coerced.

Thus, as the Georgia Supreme Court didn't find the reading of the consent notice coercive on its own, it determined that Olevik's “claim must fail.” The court then affirmed the trial court's denial of his motion to suppress and affirmed his convictions.”

Richard Lawson is a knowledgeable and skilled Fulton County DUI attorney who has been defending clients accused of driving under the influence for over two decades. Contact his office today for a free case consultation by calling (404) 816-4440 or contact us online.