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

The Georgia Supreme Court decided the case of Olevik v. State in October 2017. This case will likely have a significant impact on DUI cases in the state for many years to come. In Olevik, the court was tasked with answering whether the provision in Georgia's Constitution that provides its citizens with protection against self-incrimination, called Paragraph XVI, “prohibits law enforcement from compelling a person suspected of DUI to blow their deep lung air into a breathalyzer.”

In previous posts, we discussed how the court found that Paragraph XVI of the Georgia constitution protected citizens from incriminating themselves through both words and actions. This meant that the Georgia constitution provided greater protection than the Fifth Amendment. In addition, we looked at how the court determined that performing a breath test was a self-incriminating action and thus, compelling a DUI suspect to give a breath sample would violate his or her rights against self-incrimination.

After completing its analysis of the constitutional question, 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 contending that it was “unconstitutionally coercive, both on its face and as applied, in violation of the Fourth, Fifth, and Fourteenth Amendments of the United States Constitution and Paragraph XIII of [the] Georgia Constitution, because it is materially misleading and did not adequately inform him of his rights.” He also raised an “as-applied challenge to the implied consent notice statute, claiming that the notice language coerced him to submit to a breath test in violation of Paragraph XVI.” The Court rejected all of Olevik's claims. The court rejected his facial challenges finding that “the statute is not per se coercive” and rejected his as-applied challenge “because he offers no basis for a finding of coercion beyond the language of the notice.”

The Supreme Court concluded 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 “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 Olevik contended that the court didn't consider the “coercive and misleading nature of the implied consent notice” but the Supreme Court stated that it had concluded the notice was not per se coercive and “Olevik identifies no other factors surrounding his arrest that, in combination with the reading of the implied consent notice, coerced him into performing a self-incriminating act.” As the court did not find the reading of the consent notice coercive by itself, the court concluded that his “claim must fail.” The court then affirmed the trial court's denial of his motion to suppress and affirmed his convictions.

Although the outcome of Olevik's case did not end up changing the court's decision concerning breath tests and self-incrimination, it will likely have a significant impact on future DUI cases for years to come. If you have been charged with a DUI, please do not hesitate to contact Georgia DUI Attorney Richard Lawson today. Our knowledgeable and experienced attorneys are dedicated to defending those accused of driving under the influence. You can reach our office 24/7 by calling (404) 816-4440 or contact us online.