Georgia Supreme Court Considers Breath Tests and The Right Against Self-Incrimination

The Bill of Rights of the U.S. Constitution details certain fundamental rights that are afforded to each U.S. citizen and most states have incorporated similar rights into their constitutions. One of these rights is the right against self-incrimination. Self-incrimination can be defined as “[t]he act of indicating one's own involvement in a crime or exposing oneself to prosecution, especially by making a statement.” Black's Law Dictionary 1482 (9th ed. 2009). In a recent case decided by the Georgia Supreme Court, the court addressed whether the Georgia State Constitution protection against self-incrimination “prohibits law enforcement from compelling a person suspected of DUI to blow their deep lung air into a breathalyzer.”

The defendant, Frederick Olevik, was pulled over for a traffic violation and for having a brake light out. Officers observed signs of intoxication in Olevik and after further tests determined that he was under the influence. Olevik also admitted that he had been drinking before driving. He was then arrested and read Georgia's implied consent notice. After being read this notice, Olevik “agreed to submit to a state-administered breath test, the results of which revealed that he had a BAC of 0.113.” The legal limit for drivers over the age of 21 in Georgia is 0.08.

Olevik filed a motion to suppress the results of his breath test. He argued 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, which concluded that “his right against compelled self-incrimination was not violated because he voluntarily consent to the breath test.” Olevik was subsequently convicted of several charges including DUI Less Safe, failure to maintain a lane, and having no brake lights.”

Olevik appealed his case all the way to the state Supreme Court. He 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.” To answer this question, the Georgia Supreme Court evaluated prior case law in light of the numerous recent and applicable cases that had been decided.

The provision of the Georgia Constitution that deals with self-incrimination is Paragraph XVI. It states “[n]o person shall be compelled to give testimony tending in any manner to be self-incriminating.” In Georgia, the courts have previously held that the right against self-incrimination protects “a defendant from being compelled to incriminate himself by acts, not merely testimony.”

The court then looked at whether compelling a suspected DUI driver to complete a breath test violated that driver's right against self-incrimination as a breath test could be considered an incriminating act.

In order for a defendant to complete a breath test, he or she must provide a deep lung air sample as this type of air “provides the most reliable sample because it is in the alveolar region of the lungs where ‘alcohol vapor' and other gasses are exchanged between breath and blood.” To get this kind of a breath sample, regular breathing is not sufficient; rather a person must cooperate and “blow deeply into a breathalyzer for several seconds in order to produce an adequate sample.”

The court concluded that compelling an individual to perform a breath test was self-incrimination under Paragraph XVI of the Georgia Constitution. The court reasoned, “Indeed, 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 continued, “[c]ompelling a defendant to perform an act that is incriminating in nature is precisely what Paragraph XVI prohibits.” The court also stated 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 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 it was coercive for a variety of reasons. However, the court did not find his arguments compelling and declined to overturn his conviction.

If you have been charged with a DUI, contact Forsyth County DUI Attorney Richard Lawson today to discuss your case. We never assume a person is guilty just because there's been a charge. We are available 24/7.