Georgia Supreme Court Considers Whether Breath Tests Are Self-Incriminating

In the United States, people have a right to “plead the Fifth.” That is, the Fifth Amendment in the Bill of Rights provides citizens with the right to not incriminate themselves by making a statement that would implicate them in a crime. In addition to the federal constitution, every state has its own constitution. State constitutions can be more protective than the federal constitutions, providing their citizens with greater rights than they would have at the federal level.

One recent case that the Georgia Supreme Court ruled on required the court to look at the differences between the right against self-incrimination in the Georgia constitution and the federal constitution. The same issue arose in Olevik v. State, which is a DUI case. The main issue the court was tasked with determining was “whether [the] state constitutional protection prohibits law enforcement from compelling a person suspected of DUI to blow their deep lung air into a breathalyzer.”

The case arose after the defendant and appellant, Frederick Olevik, was arrested and charged with driving under the influence. He agreed to take a breath test after being read the appropriate implied consent notice. The test revealed that his BAC was 0.113. Olevik filed a motion to suppress the breath test results, however, the motion was denied by the trial court and Olevik was subsequently convicted of three offenses, including DUI Less Safe.

Olevik appealed his case all the way to the state Supreme Court. He contended 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.” In order to evaluate Olevik's argument, the court considered a number of different issues including the issue of breath tests and self-incrimination.

The court looked at Paragraph XVI of the Georgia Constitution, which states “[n]o person shall be compelled to give testimony tending in any manner to be self-incriminating.” The court determined 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.” Thus, in Georgia, citizens have the right to not incriminate themselves by refusing to speak and refusing to take certain actions.

The court then looked at whether a breath test could be considered a self-incriminating action. If it could, then coercing a defendant to take one would violate his right against self-incrimination. The court ultimately determined that forcing a defendant to take a breath test was asking him to incriminate himself. It stated: “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 reasoned that “[c]ompelling a defendant to perform an act that is incriminating in nature is precisely what Paragraph XVI prohibits.”

The court then looked at how its rulings applied to Olevik's particular circumstances. Though the court did find that “the trial court erred in in [sic] concluding that Olevik's constitutional right against compelled self-incrimination was not at issue,” it also determined that the “trial court's ultimate decision that Olevik was not compelled into submitting to the breath test must be affirmed.” Olevik had consented to the test and the court disagreed with his contention that the implied consent notice was coercive. In addition, the court stated “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 such, 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.