In a recent ruling, the Georgia Supreme Court unanimously held that the state’s constitution does not provide law enforcement officers the right or ability to compel drivers suspected of DUI/DWI to take a breathalyzer test.
Formerly, Georgia—like Minnesota currently does—criminalized a defendant’s refusal to submit to a breath test and provided that said refusal can be submitted as evidence at trial. This new ruling, however, overturns that.
Self-incrimination and breath tests
At the heart of this ruling is a defendant’s protection under both the US and state constitutions against compelled self-incrimination. The Court held that this protection applies not only to verbal testimony but also to any acts that may generate incriminating evidence.
That this ruling was unanimous is interesting. Every justice agreed that all of the state’s previous decisions holding that drivers suspected of DWI do not have the constitutional right to refuse a breathalyzer test when requested by law enforcement are unconstitutional because it, essentially, forces self-incrimination.
In Birchfield v. North Dakota, the US Supreme Court held that compelling a suspected drunk driver to take a warrantless breath test does not violate the Fourth Amendment’s protection against unreasonable search and seizure because the search incident to arrest doctrine is wholly compatible, and a breath test is not nearly as invasive as a blood or urine test—both of which require warrants. The self-incrimination angle is a new approach in this longstanding fight against drunk driving.
Facts of the case at hand
A June 2015 traffic stop in Gwinnett County, Georgia, rests at the heart of this new decision. Frederick Olevik was pulled over by police for failing to maintain his lane and having no tail lights. When officers observed his watery, bloodshot eyes and smelled alcohol on his person, they administered the usual field sobriety tests which included having him blow into a handheld breathalyzer. Olevik blew a .113—well above the .08 BAC legal limit in Georgia.
Olevik was arrested, tried, and convicted of DUI, DUI unlawful alcohol concentration, failure to maintain his lane, and having no brake lights.
Following his conviction, Olevik and his lawyer appealed on the grounds that Georgia’s implied consent notice that the officer read to Olevik was misleading and violated his constitutional protection against compelled self-incrimination. The state Supreme Court agreed to a certain extent.
In its holding in Olevik v. State, the justices agreed that compelling a breathalyzer test does, in fact, implicate one’s right against compelled self-incrimination; however, they also ruled that the implied consent notice statute was not unconstitutional because the language is “not per se coercive.” Thus, while the Court denied Olevik’s motion and affirmed his convictions because the officer was neither coercive nor intimidating in his words or actions, the Court’s interpretation of the law now becomes a troubling thorn in decades of Georgia Supreme Court case law.
The bottom line
This legal technicality means that—at least in Georgia—since suspects must comply with taking a breath test, requiring—or compelling—said tests was unconstitutional. Now drivers may refuse the test. Whereas, criminally, they will not face additional charges or punishment, there will be civil sanctions for refusing the test including a minimum one-year driver’s license suspension.
It will be interesting to see whether this case makes it to the US Supreme Court and whether the High Court will affirm or reverse the State Supreme Court’s decision as it already, quite recently, ruled in Birchfield that DUI defendants may, in fact, face criminal penalties for failing to comply with a breath test. Additionally, one wonders whether field sobriety tests will also fall victim to judicial interpretation of the limits of a DWI defendant’s rights versus the compelling government interest to prevent and reduce drunk driving.