302 Ga. 228
Ga.2017Background
- Frederick Olevik was stopped for lane violation and faulty brake light; officers observed signs of intoxication and arrested him for DUI.
- After field tests and a positive portable alco-sensor, officers read Georgia’s statutorily prescribed implied-consent notice and Olevik agreed to a state-administered breath test, which showed BAC 0.113.
- Olevik moved to suppress the breath-test results, arguing the implied-consent notice was coercive and that being compelled to provide deep-lung breath violated the Georgia Constitution’s protection against compelled self-incrimination (Paragraph XVI) and due process.
- The trial court denied suppression, finding Olevik voluntarily consented; Olevik appealed to the Georgia Supreme Court.
- The Court concluded that Georgia’s protection against compelled self-incrimination covers compelled acts that generate evidence (like providing deep-lung breath) and overruled prior precedent to that extent, but held the implied-consent notice is not facially coercive and that Olevik offered no evidence beyond the statute’s language to prove actual coercion.
- Judgment: conviction and denial of suppression affirmed; precedent (Klink) overruled insofar as it held breath tests do not implicate the state self-incrimination clause.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Paragraph XVI protects against compelled breath tests | Olevik: deep-lung breath is a compelled incriminating act; Paragraph XVI covers acts, not just testimony | State: breath is a naturally excreted substance like urine/breath and not protected testimonial evidence | Held: Paragraph XVI covers compelled acts that generate incriminating evidence; compelled deep-lung breath implicates Paragraph XVI; Klink overruled on this point |
| Whether the implied-consent notice is facially coercive | Olevik: statutory notice is materially misleading and inherently coercive, so no one can validly consent | State: statute falls within lawful implied-consent framework and is not per se coercive | Held: facial challenge fails — statute has a plainly legitimate sweep and is not coercive in all applications |
| Whether reading the notice and test administration rendered Olevik’s consent involuntary (as-applied) | Olevik: the notice’s language coerced him to submit, violating Paragraph XVI and due process | State: totality of circumstances show voluntary consent; reading alone doesn’t compel admission of results | Held: as-applied claim fails — voluntariness judged by totality of circumstances; Olevik presented no evidence beyond the notice text and stipulated lack of threats, so no coercion shown |
| Whether warrant/ Fourth Amendment issues bar warrantless breath testing here | Olevik: implied-consent reading may vitiate valid consent under state protections | State: breath tests are permitted as search-incident-to-arrest under Birchfield so Fourth Amendment/Paragraph XIII not implicated | Held: consistent with Birchfield, warrantless breath tests are permissible as searches incident to arrest; Fourth Amendment/Paragraph XIII claim not a basis to suppress here |
Key Cases Cited
- Birchfield v. North Dakota, 136 S. Ct. 2160 (2016) (breath tests lawful as search incident to arrest; blood tests treated differently)
- Klink v. State, 272 Ga. 605 (2000) (previously held compelled breath testing did not implicate Georgia self-incrimination clause; overruled in part)
- Williams v. State, 296 Ga. 817 (2015) (exigent circumstances are not categorically present; voluntariness of consent to blood tests evaluated under totality of circumstances)
- Day v. State, 63 Ga. 668 (1879) (Georgia constitutional protection against self-incrimination extends to compelled acts, not just testimony)
- Calhoun v. State, 144 Ga. 679 (1916) (explaining self-incrimination clause protects against being compelled to do incriminating acts)
- South Dakota v. Neville, 459 U.S. 553 (1983) (statutory notices and consequences of refusal do not necessarily render consent coercive)