Fazio v. State
302 Ga. 295
Ga.2017Background
- Fazio was convicted after a bench trial of DUI to the extent it was less safe and of unlawful BAC under OCGA § 40-6-391 (a)(1), (a)(5).
- Arrest followed a Gwinnett County road-block stop in the early morning of March 28, 2015, due to signs of intoxication after interaction and field sobriety failures.
- Fazio was read the implied consent notice under OCGA § 40-5-67.1 (b)(2) and verbally agreed to the breath test.
- He was transported to an Intoxilyzer 9000; two breath samples showed BAC above the legal limit, with no objections raised by Fazio.
- Fazio moved to suppress the breath-test results, arguing constitutional violations, which the trial court denied; the Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the implied consent statute is unconstitutional under the Fourth Amendment/Georgia Constitution | Fazio argues coercive, unconstitutional under the Fourth Amendment. | State contends statute remains valid; breath tests may be obtained as a search incident to arrest. | Not unconstitutional; breath tests permitted as search incident to arrest. |
| Whether the implied consent statute is unconstitutionally misleading or coercive on its face | Statute misinforms rights and consequences of refusal, making it coercive. | Defenses are unfounded; statute does not create widespread confusion. | Facial challenge fails; statute not inherently coercive. |
| Whether the compelled self-incrimination claim was preserved and reviewable | Breath test implicates right against self-incrimination and requires active participation. | Argument not preserved below; cannot review on appeal. | Preservation failure; even if preserved, argument would fail under Olevik. |
Key Cases Cited
- Olevik v. State, 302 Ga. 228 (Ga. 2017) (implied consent not inherently coercive; breath test as search incident to arrest)
- Birchfield v. North Dakota, 136 S. Ct. 2160 (U.S. 2016) (breath test permissible without a warrant; blood test requires warrant)
- Amos v. State, 298 Ga. 804 (Ga. 2016) (preservation requirement for constitutional challenges)
- Bohannon v. State, 269 Ga. 130 (Ga. 1998) (preservation rule for challenging statutes)
- Olevik v. State, 302 Ga. 234 (Ga. 2017) (facial challenges to implied-consent-related coercion addressed)