Georgia Supreme Court Hands Down Ruling On Self-Incrimination and Breath Tests

The Georgia Supreme Court recently handed down a decision that could have a significant impact on DUI cases. In Olevik v. State, the court reviewed several issues, but that main question the court was asked to answer was whether the Georgia state constitution “prohibits law enforcement from compelling a person suspected of DUI to blow their deep lung air into a breathalyzer.”

The case involved Frederick Olevik, who was pulled over having an inoperable brake light and failing to maintain a lane. Officers saw signs of intoxication and the defendant was subsequently arrested. He was read “the statutorily mandated, age-appropriate implied consent notice” and “agreed to submit to a state-administered breath test, the results of which revealed that he had a BAC of 0.113.” Olevik later moved to have the results of this test suppressed contending “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 at the trial court level and he subsequently appealed to the Court of Appeals and then the Supreme Court.

The Georgia state constitution, as well as the U.S. Constitution, both protect an individual's right to not incriminate him or herself. The Court determined that the provision in the Georgia Constitution that protects citizens from self-incrimination, Paragraph XVI, is more protective than the U.S. Constitution. The court stated that in Georgia, Paragraph XVI “protect[s] a defendant from being compelled to incriminate himself by acts, not merely testimony.”

The Court then looked at whether compelling a defendant to take a breath test was a self-incriminating action. The test itself requires more than regular breath, it requires the defendant to cooperate and “blow deeply into a breathalyzer for several seconds in order to produce an adequate sample” of a defendant's deep lung air. The court reasoned that “Paragraph XVI prohibits compelling a suspect to perform an act that itself generates incriminating evidence.” The court concluded that compelling a defendant to perform a breath test was making a defendant perform a self-incriminating act.” The court also determined that “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 examined the facts and circumstances of Olevik's case. Though the court did find the trial court erred in ruling that “Olevik's constitutional right against compelled self-incrimination was not an issue," it also concluded that “the trial court's ultimate decision that Olevik was not compelled into submitting to the breath test must be affirmed.” It determined that the reading of the implied consent notice was not coercive or misleading and there was no evidence of other coercive acts. Therefore, the court found that the consent that Olevik gave in submitting to the test was not invalid. As he gave valid consent to the test, the court affirmed the trial court's decision on the motion to suppress and affirmed Olevik's convictions.

If you have been arrested for DUI in Cherokee County, contact Cherokee County DUI Attorney Richard Lawson today. Richard Lawson has over twenty years experience as a criminal defense attorney and has dedicated his career to defending those who have been accused of driving under the influence. Contact his office today.