In a new ruling, the Supreme Court of Georgia clarified the rights drivers suspected of DUI have when it comes to interaction with law enforcement officers and the implied consent law.
The court made it clear that the state's constitution does not give law enforcement officers the ability to compel drivers suspected of driving under the influence to take a breath test by blowing into a breathalyzer.
It brings to question whether or not a defendant's refusal of a breath test can be submitted as evidence in their trial. As it stands, prosecutors can submit a defendants' refusal of the test. This new ruling changes that.
In a summary of the ruling, the high court wrote "the state constitution’s protection against compelled self-incrimination applies not only to testimony but also to acts that generate incriminating evidence."
In a unanimous decision, the court overturned previous decisions which held that drivers do not have rights under the constitution to refuse a breath test requested by law enforcement officers.
A local traffic stop in Gwinnett County is at the center of the new ruling. In June 2015, Frederick Olevik was pulled over for failure to maintain lane and no tail lights. Officers observed him bloodshot and watery eyes, slow speech and the smell of alcohol emitting from his body.
In addition to field sobriety tests, officers told him to blow into a handheld breath tester but the officer told him that the test was not the same as the state-administered breath test. Olevik blew a .113, which is above the .08 grams considered legal in Georgia.
He was arrested, tried and convicted of DUI less safe, DUI unlawful alcohol concentration, failure to maintain lane and no brake lights.
Olevik and his attorney appealed the DUI convictions saying the implied consent notice officers read him had "misleading" language and violated his right against compelled self-incrimination under the state's constitution.
The Supreme Court opinion said they agreed with him about the self-incrimination,
"We agree with Olevik that submitting to a breath test implicates a person’s right against compelled self-incrimination under the Georgia Constitution, and we overrule prior decisions that held otherwise,” today’s opinion says. “We nevertheless reject Olevik’s facial challenges to the implied consent notice statute, because the language of that notice is not per se coercive. Our previous decisions prevented the trial court from fully considering Olevik’s argument that, based on a totality of the circumstances in this case, the language of the implied consent notice actually coerced him to incriminate himself.”“But we have already concluded in rejecting his facial challenge that the notice, standing alone, is not per se coercive,” the opinion states. “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. Indeed, Olevik stipulated that the officer’s actions were not threatening or intimidating. Because the reading of the implied consent notice is not, by itself, coercive, and Olevik has offered nothing else, Olevik’s claim must fail. Accordingly we affirm the trial court’s order denying Olevik’s motion to suppress and affirm his convictions.”
While Olevik's convictions stand, this change in the interpretation of the law overturns decades of Georgia Supreme Court opinions on the matter.
The 49-page opinion leaves a lot of room for interpretation. Defense attorneys believe it could take years before some of those questions will be ironed out.