Compelling A Suspect To Take A Breath Test Violates Constitutional Rights: A Look at Olevik v. State (Part One)

In October 2017, the Georgia Supreme Court handed down a decision that could have widespread implications in DUI cases. The case, Olevik v. State, deals with the right against self-incrimination. Like the U.S. Constitution, the Georgia state constitution also protects citizens from incriminating themselves. The court looked at “whether this state constitutional protection prohibits law enforcement from compelling a person suspected of DUI to blow their deep lung air into a breathalyzer.”

This is a complex case and the opinion is quite lengthy. As such, it will be analyzed in three blog posts. This post looks at the facts of the case and the protections provided by the Georgia Constitution. The second post looks at the court's discussion of breath tests and whether compelling a suspect to perform such a test violates his or her right against self-incrimination. And the final post looks at the facts as applied to Olevik's specific case.

Facts of Olevik v. State

The defendant in the case, Frederick Olevik, was stopped for failing to maintain a lane and having an inoperable brake light. Police officers “observed that Olevik's eyes were bloodshot and watery, his speech was slow, and he smelled strongly of alcohol.” In addition, the defendant admitted he had been drinking prior to getting behind the wheel. The results of his field sobriety tests indicated impairment as did the portable alco-sensor machine. Olevik was arrested and was read “the statutorily mandated, age-appropriate implied consent notice.” After being read the notice he “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 suppress the results of his breath test arguing 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.” The trial court judge denied his motion, “concluding that his right against compelled self-incrimination was not violated because he voluntarily consented to the breath test.” He subsequently “was convicted of DUI less safe, failure to maintain a lane, and no brake lights.” Olevik then appealed to the Supreme Court.

Olevik's Argument

Olevik contends that the “trial court erred in denying his motion to suppress because the implied consent notice is unconstitutional on its face and as applied, coercing him to submit to a breath test in violation of his right against compelled self-incrimination under the Georgia Constitution.” Under a current Georgia case, Klink v. State, which was decided 17 years ago in 2000, Olevik's claims would be precluded. However, he asked the court to determine whether the case remains good law.

Georgia Case Law and Constitutional Protections

The court examined the holdings of Klink in light of subsequent U.S. and Georgia Supreme Court rulings. The court made several determinations before turning to the question of self-incrimination. These determinations included, but were not limited to: that certain older Georgia cases could no longer stand in light of subsequent case law and that breath tests were considered searches incident to arrest in light of Birchfield v. North Dakota, a 2016 U.S. Supreme Court decision that discussed the Fourth Amendment implications of breath and blood tests. Since no Fourth Amendment rights were violated when a defendant is asked to submit to a breath test, Georgia's implied consent notice cannot be considered coercive on those grounds.

The court then evaluated the provision of the Georgia Constitution that deals with self-incrimination. This 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.” While the traditional notion of self-incrimination is purely that a person cannot be asked to communicate anything incriminating, Georgia law goes further. The court stated that Georgia has long held that the constitutional right against self-incrimination “protected a defendant from being compelled to incriminate himself by acts, not merely testimony.” The court further elaborated that “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.”

States can, and do, confer greater protections to their citizens than federal law. Here, the court concluded that in Georgia a citizen's right against self-incrimination includes actions as well as words. The next post looks at whether the actions that cannot be compelled include a breath test. If you have been charged with a DUI, contact Georgia DUI Attorney Richard Lawson today to discuss your case. ​We never assume a person is guilty just because they have been charged. We are available 24/7. Never assume your case is hopeless; we do not. Call now and avoid severe Georgia DUI Penalties.