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 the implied-consent warning.\
- Georgia statutes (OCGA §§ 40-5-67.1(b), 40-6-392(d)) permit prosecutors to introduce a driver's refusal to submit to chemical testing as evidence at trial.\
- Elliott moved to suppress evidence of her refusal, arguing Paragraph XVI of the Georgia Constitution (state self-incrimination clause) bars admission; trial court denied suppression.\
- The Georgia Supreme Court had previously held in Olevik v. State that Paragraph XVI protects against compelled physical acts (including breath tests).\
- The State asked the Court to overrule Olevik or to hold that, even if breath tests are protected, evidence of a refusal may still be admissible.\
- The Court reaffirmed Olevik, analyzed historical context and precedent, and held that admitting refusal evidence at criminal trial violates Paragraph XVI; it reversed the denial of Elliott’s suppression motion.
Issues
| Issue | Plaintiff's Argument (Elliott) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether Paragraph XVI bars compelling a driver to submit to a state-administered breath test | Paragraph XVI (and historical Georgia precedent) protects against compelled affirmative acts, so the State may not compel a breath test | The text "testimony" is plain and limits protection to oral/written testimony only; Olevik was wrongly decided | Court adheres to Olevik: Paragraph XVI’s original public meaning and Georgia precedent cover compelled physical acts like breath tests, so breath tests cannot be compelled under Paragraph XVI |
| Whether the State may admit at criminal trial evidence that a defendant refused a breath test | Admission of refusal evidence would penalize assertion of constitutional right and is prohibited by Paragraph XVI given historical developments and Georgia case law disfavoring adverse inferences from silence/refusal | Even if breath tests are protected, the State may introduce refusal evidence (implied-consent scheme, prosecutorial need); federal Fifth Amendment precedents (Schmerber, Neville) permit using refusal evidence | Admission of a refusal to submit to a breath test violates Paragraph XVI; OCGA §§ 40-5-67.1(b) and 40-6-392(d) are unconstitutional to the extent they permit such evidence in criminal trials |
Key Cases Cited
- Olevik v. State, 302 Ga. 228 (2017) (Georgia Supreme Court holding Paragraph XVI bars compelled breath tests)\
- Day v. State, 63 Ga. 668 (1879) (early Georgia decision construing state self-incrimination clause to include compelled acts)\
- Calhoun v. State, 144 Ga. 679 (1916) (reinforcing Day; constitutional protection broader than oral testimony)\
- Griffin v. California, 380 U.S. 609 (1965) (Fifth Amendment bars prosecutorial comment on defendant's failure to testify — discussed as federal analogue but not controlling for Georgia)\
- Boyd v. United States, 116 U.S. 616 (1886) (historic federal case treating compelled production of private papers as self-incrimination)\
- Schmerber v. California, 384 U.S. 757 (1966) (United States Supreme Court distinguishing testimonial and physical evidence; limited Fifth Amendment protection)\
- South Dakota v. Neville, 459 U.S. 553 (1983) (held admission of refusal to submit to blood test did not violate Fifth Amendment; discussed and distinguished)\
- Aldrich v. State, 220 Ga. 132 (1964) (Georgia case holding conviction based on refusal to perform an incriminating act conflicted with state self-incrimination protection)