Elliott v. State
305 Ga. 179
Ga.2019Background
- Andrea Elliott was arrested for DUI after traffic stop; she refused a state-administered breath test after receiving Georgia’s implied-consent warning.
- Georgia statutes (OCGA §§ 40-5-67.1(b), 40-6-392(d)) permit the State to introduce evidence that a defendant refused chemical testing.
- Elliott moved to suppress evidence of her refusal, arguing Article I, Section I, Paragraph XVI of the Georgia Constitution (protection against compelled self-incrimination) bars such evidence; trial court denied suppression.
- The State urged the Court to overrule Olevik v. State (302 Ga. 228) and argued Paragraph XVI should be read like the Fifth Amendment (protecting only testimonial/communicative evidence).
- The Georgia Supreme Court reaffirmed Olevik, held Paragraph XVI covers compelled affirmative acts (including breath tests), and ruled admission of refusal evidence violates Paragraph XVI; it reversed denial of Elliott’s suppression motion.
Issues
| Issue | Plaintiff's Argument (Elliott) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether Paragraph XVI of the Georgia Constitution protects against compelled physical acts (breath tests) | Paragraph XVI protects against compelled acts, so breath tests are protected | Paragraph XVI should be read like the Fifth Amendment and not extend to physical acts | Yes — Court adheres to Olevik: Paragraph XVI covers affirmative acts, including breath tests |
| Whether Olevik should be overruled | Olevik correctly applied Georgia historical and precedential context | Olevik was wrong; Georgia should align with federal Fifth Amendment jurisprudence | Olevik upheld; consistent historical Georgia precedent supports its holding |
| Whether admission of evidence that a defendant refused a breath test is barred by Paragraph XVI | A defendant’s invocation of the privilege (refusal) cannot be used against them at trial | Statutes and public-safety interests permit admission; implied consent creates expectation to submit | Admission of refusal evidence violates Paragraph XVI; OCGA §§ 40-5-67.1(b) and 40-6-392(d) unconstitutional to that extent |
| Relevance of U.S. Supreme Court Fifth Amendment cases (e.g., Schmerber, Griffin, Neville) to Georgia’s Paragraph XVI | Georgia Constitution may afford broader protection than the Fifth Amendment; federal precedent not controlling | Federal decisions are persuasive and should control interpretation | Federal decisions persuasive only to the extent they share language/history; here Georgia’s distinct history supports broader protection under Paragraph XVI |
Key Cases Cited
- Olevik v. State, 302 Ga. 228 (2017) (held Georgia’s self-incrimination clause bars compelled breath testing; precedent the Court adheres to)
- Day v. State, 63 Ga. 668 (1879) (early Georgia case construing self-incrimination protection to include compelled acts)
- Calhoun v. State, 144 Ga. 679 (1916) (explained that the state clause is as broad as the common-law privilege and covers affirmative acts)
- Aldrich v. State, 220 Ga. 132 (1964) (applied state constitutional protection to bar prosecution premised on refusal to perform an incriminating act)
- Boyd v. United States, 116 U.S. 616 (1886) (federal decision holding compelled production of private papers implicated the Fifth Amendment; historical context for broader privilege)
- Schmerber v. California, 384 U.S. 757 (1966) (U.S. Supreme Court held certain physical evidence is non-testimonial for Fifth Amendment purposes; contrasted with Georgia precedent)
- Griffin v. California, 380 U.S. 609 (1965) (held Fifth Amendment prohibits prosecutorial comment on defendant’s silence; considered but found not dispositive for Georgia’s Paragraph XVI)