Olevik v. State
302 Ga. 228
Ga.2017Background
- Frederick Olevik was stopped for traffic violations, showed signs of intoxication, admitted drinking, performed field sobriety tests, was arrested, read Georgia’s implied-consent notice, and agreed to a state-administered breath test that showed BAC 0.113.
- Olevik moved to suppress the breath-test results, arguing the implied-consent notice was misleading/coercive and that compelling a deep-lung breath into a machine 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.
- The Georgia Supreme Court reexamined precedent that had treated breath tests as outside the state self-incrimination protection and concluded those decisions were incorrect.
- The Court held that Paragraph XVI protects against compelled acts that generate incriminating evidence (including the deep-lung breath required for breathalyzer testing), but that the implied-consent notice was not facially coercive and Olevik presented no additional facts showing the notice coerced him in his case.
- Judgment affirmed: breath-test admissible; Klink overruled to the extent it held breath tests did not implicate Paragraph XVI.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Paragraph XVI (Ga. Const.) protects against compelled breath tests | Olevik: deep-lung breath is a compelled incriminating act; Paragraph XVI bars compelling such acts | State: breath is a natural excretion; prior Georgia cases allowed breath/urine/blood collection without Fifth-type protection | Held: Paragraph XVI covers compelled acts that generate incriminating evidence; deep-lung breath implicates Paragraph XVI; overruling Klink on that point |
| Whether the implied-consent notice (OCGA § 40-5-67.1(b)) is facially coercive | Olevik: notice language is materially misleading and therefore coercive per se | State: notice is a valid statutory warning with a plainly legitimate sweep (all states have implied-consent schemes) | Held: facial challenge fails — notice not per se coercive; statute has plainly legitimate sweep |
| Whether the implied-consent notice coerced Olevik as-applied (rendering his consent involuntary) | Olevik: the notice’s misleading phrasing coerced him to submit to the breath test | State: trial court found voluntary consent under totality of circumstances; officer not intimidating; no other coercive factors | Held: as-applied challenge fails — no evidence beyond the notice’s language showed coercion; totality-of-circumstances supports voluntariness |
| Whether Fourth Amendment/Paragraph XIII invalidates warrantless breath tests based on coercive notice | Olevik: coercive notice vitiates consent, implicating Fourth/Paragraph XIII issues | State: under Birchfield, warrantless breath tests are permissible as search incident to arrest, so consent/rule about notice doesn’t alter Fourth Amendment analysis | Held: Fourth Amendment/Paragraph XIII not implicated because breath tests may be conducted as search incident to arrest under Birchfield; constitutional issue rests on Paragraph XVI (self-incrimination) |
Key Cases Cited
- Klink v. State, 272 Ga. 605 (2000) (prior Georgia decision holding breath tests did not implicate state self-incrimination protection; overruled in part)
- Birchfield v. North Dakota, 136 S. Ct. 2160 (2016) (Supreme Court: breath tests may be search incident to arrest; blood tests generally not)
- Day v. State, 63 Ga. 668 (1879) (early Georgia case holding self-incrimination protection covers compelled acts, not only testimony)
- Calhoun v. State, 144 Ga. 679 (1916) (explaining constitutional self-incrimination protection derives from common-law rule and covers acts that furnish incriminating evidence)
- Williams v. State, 296 Ga. 817 (2015) (warrantless blood draws require consent or an exception; mere acquiescence after implied-consent notice not per se voluntary)
- South Dakota v. Neville, 459 U.S. 553 (1983) (plurality: implied-consent warnings about civil consequences do not make submission inherently involuntary)
- Schmerber v. California, 384 U.S. 757 (1966) (Fifth Amendment protects testimonial communications; physical evidence extracted from body treated differently)