The Georgia Constitution protects each of us from being forced to incriminate ourself. Unlike the similar right guaranteed by the Fifth Amendment to the United States Constitution, this state constitutional protection applies to more than mere testimony; it also protects us from being forced to perform acts that generate incriminating evidence. This case calls this Court to decide whether this state constitutional protection prohibits law enforcement from compelling
Frederick Olevik was convicted of DUI less safe, failure to maintain a lane, and no brake lights.
1. Background.
Before proceeding to the legal issues Olevik raises, we begin with a brief overview of Georgia’s DUI laws. We then turn to the factual context of this case.
(a) Georgia’s statutory framework on implied consent and DUI arrests.
The scourge of people operating motor vehicles under the influence of alcohol, drugs, or other intoxicating substances has plagued us as long as people have been driving, leading states to enact criminal laws to combat this problem. See Birchfield v. North Dakota,
Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.08 grams or more, your Georgia driver’s license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your (designate which tests) under the implied consent law?
OCGA § 40-5-67.1 (b) (2).
(b) Oleuik’s traffic stop.
The facts are largely undisputed. After observing that Olevik failed to maintain his lane while driving and had an inoperable brake light, police initiated a traffic stop. During the stop, police observed
In support of his motion to suppress the breath test results, Olevik stipulated that the officers were not threatening or intimidating in requesting the breath test. He nevertheless argued that his consent to the test was invalid because the language of the implied consent notice was misleading, coercing him to take the test in violation of his right against compelled self-incrimination. After several hearings, the trial court denied Olevik’s motion to suppress, concluding that his right against compelled self-incrimination was not violated because he voluntarily consented to the breath test. The court found him guilty of the charged offenses following a bench trial. Olevik then brought this appeal.
2. The Georgia Constitution’s right against compelled self-incrimination applies to breath tests.
On appeal, Olevik argues that the trial court erred in denying his motion to suppress because the implied consent notice is unconstitutional on its face and as applied, coercing him to submit to a breath test in violation of his right against compelled self-incrimination under the Georgia Constitution. As Olevik conceded at oral argument, our decision in Klink v. State,
(a) Klink’s foundation has been undermined.
In Klink, we upheld the implied consent notice statute against claims indistinguishable from Olevik’s. We did so on the basis that
For the proposition that the Georgia Constitution does not protect citizens from compelled blood testing, Klink relied on Allen, which in turn relied on Strong v. State,
As has been made clear in more recent decisions, Strong’s analysis concerning warrantless blood tests was incorrect.
Thus, Georgians do have a constitutional right to refuse to consent to warrantless blood tests, absent some other exception to the warrant requirement. Because we now know that Klink erred in holding that the Georgia Constitution does not preserve such a right, doubt naturally arises about the soundness of our parallel statement in Klink that the Georgia Constitution also does not protect against compelled breath testing. Klink,
The Fourth Amendment to the United States Constitution and Paragraph XIII of the Georgia Constitution protect against unreasonable searches and seizures. Cooper v. State,
Here, Olevik’s claim that the language of the implied consent notice rendered his consent invalid is not cognizable on Fourth Amendment and Paragraph XIII grounds. The Supreme Court of the United States concluded in Birchfield that the Fourth Amendment permits warrantless breath tests as searches incident to a DUI arrest. Birchfield,
Because we generally interpret Paragraph XIII consistent with the Fourth Amendment, under Birchfield, our Constitution also would allow warrantless breath tests as searches incident to arrest. Olevik offers no reason that we should interpret Paragraph XIII differently in this context.
The Georgia Constitution provides that “[n]o person shall be compelled to give testimony tending in any manner to be self-incriminating.” Ga. Const. 1983, Art. I, Sec. I, Par. XVI (“Paragraph XVI”). If we were construing Paragraph XVI in the first instance, we might conclude that the scope of Georgia’s right against compelled self-incrimination is coterminous with the right guaranteed by the Fifth Amendment to the United States Constitution, which is limited to evidence of a testimonial or communicative nature. See Muhammad v. State,
(i) Principles of constitutional interpretation counsel us to construe Paragraph XVI in the light of case law interpreting similar text prior to ratification of the 1983 Constitution.
We interpret a constitutional provision according to the original public meaning of its text, which is simply shorthand for the meaning the people understood a provision to have at the time they enacted it. This is not a new idea. Indeed, there are few principles of Georgia law more venerable than the fundamental principle that a constitutional provision means today what it meant at the time that it was enacted. “[T]he Constitution, like every other instrument made by men, is to be construed in the sense in which it was understood by the makers of
In determining the original public meaning of a constitutional provision, we consider the plain and ordinary meaning of the text, viewing it in the context in which it appears and reading the text in its most natural and reasonable manner. See Ga. Motor Trucking Assn. v. Ga. Dept. of Revenue,
One key aspect of that broader context is the body of pre-enactment decisions of this Court interpreting the meaning of certain text that the framers of our Constitution subsequently chose to use. In such cases, the text the framers chose had already been definitively interpreted. When the framers of our Constitution considered language that had already been definitively interpreted and kept it without material alteration, they are strongly presumed to have kept with the text its definitive interpretation. This principle, too, is not new to us. In a case decided shortly before the ratification of the 1983 Constitution, Justice Gregory acknowledged in a concurrence that this well-established principle precluded his preferred interpretation of constitutional text:
[R]egardless of the interpretation we might now place on these words, it is clear that our courts have in the past*237 given them the meaning the majority opinion now gives them. It is this interpretation of these words which was incorporated into the Constitution of 1945. A constitutional provision is to be construed in the sense in which it was understood by the framers and the people at the time of its adoption. Where the language in our [Constitution does not indicate an intention to declare some new principle, sound construction requires that it be construed to have intended no more than merely to state the law as it existed at that time. The interpretation we might give these words today is unimportant. Only that interpretation incorporated into the Constitution concerns us in this particular case.
McCafferty v. Med. College of Ga.,
When we consider the original public meaning, we necessarily must focus on objective indicators of meaning, not the subjective intent of particular individuals that the language mean something idiosyncratic. The importance of this objective approach is plain when we consider our similar focus in statutory construction. When we consider the meaning of statutes enacted by 236 members of the General Assembly, we determine meaning from text and context, “not the subjective statements of in dividual legislators.” Gibson v. Gibson,
how, putting aside the text, are we to figure out what “intention” was in the head of the legislators when they voted? And are we searching for the intention of the entire legislature? A majority of the members who voted? Just the key members or sponsors of the bill or others who spoke or wrote about the bill at some point before (or after) passage, in some way that was publicly reported? What if no majority of members voted on it with the same intention? And what of the intention of the Governor who signed the bill?
Merritt v. State,
Our objective focus is even more important when we interpret the Constitution. Unlike ordinary legislation, the people — not merely elected legislators — are the “makers” of the Georgia Constitution. See Ga. Const. of 1983, Art. X, Sec. I, Par. II (proposals to amend or replace constitution require a vote of the people); see also Wheeler v. Bd. of Trustees of Fargo Consolidated School Dist.,
(ii) Paragraph XVI has a nearly unbroken history of application to compelled acts, not merely testimony.
Applying these principles, we construe the right against compelled self-incrimination preserved by Paragraph XVI in the light of the meaning of Paragraph XVI’s materially identical ancestors. The right against compelled self-incrimination achieved constitutional status in Georgia for the first time in the 1877 Constitution. Paragraph XVI provides that “[n]o person shall be compelled to give testimony tending in any manner to be self-incriminating”; the 1877 provision provided that “[n]o person shall be compelled to give testimony tending in any manner to criminate himself.” Ga. Const. 1877, Art. I, Sec. I, Par. VI. Other than replacing the archaic phrase “to criminate himself”
Although Day did not explain its broad interpretation,
The self-incrimination provision has been carried forward with no material change from the 1877 Constitution through several intervening constitutions to our current 1983 Constitution. See Ga. Const. 1945, Art. I, Sec. I, Par. VI (“No person shall be compelled to give testimony tending in any manner to criminate himself.”); Ga. Const. 1976, Art. I, Sec. I, Par. XIII (same); Ga. Const. 1983, Art. I, Sec. I, Par. XVI (“No person shall be compelled to give testimony tending in any manner to be self-incrimina ting.”). At no point through this history was the constitutional language changed to abrogate Day’s interpretation, nor did we reconsider Day. To the contrary, we have consistently and repeatedly applied the state constitutional protection against compelled self-incrimination in accord with Day. See, e.g., Brown v. State,
Notwithstanding this well-aged precedent recognizing that the state right against compelled self-incrimination applies beyond mere testimony, the State argues that we should construe Paragraph XVI according to its plain text and limit the right to only what is commonly understood today to be “testimony,” i.e., spoken or written statements of certain kinds. The State argues that we erred in Day by ignoring the plain language of the constitutional provision and cites legislative history surrounding the creation of the 1877 Constitution as evidence that the framers of that constitution intended for the right against self-incrimination to be limited to testimony.
(iii) Breathing deep lung air into a breathalyzer is a self-incriminating act that Paragraph XVIprevents the State from compelling.
Although the scope of our right against compelled self-incrimination extends to acts, it is only compelled acts of the defendant that fall within the protections of Paragraph XVI. For example, we have held that a defendant’s right against compelled self-incrimination was violated when he was compelled to place his foot in certain footprints located near the crime scene. Day,
In contrast, the right against compelled self-incrimination is not violated where a defendant is compelled only to be present so that certain incriminating evidence may be procured from him. Batton v. State,
In other instances, even if the right was implicated, we concluded that no violation had occurred where the defendant consented to the act rather than being compelled. See, e.g., Scott v. State,
In sum, Paragraph XVI prohibits compelling a suspect to perform an act that itself generates incriminating evidence; it does not prohibit compelling a suspect to be present so that another person may perform an act generating such evidence. See Creamer,
The police officer who administered the test in this case testified that a proper breath test requires deep lung breath, and that a suspect has to “blow sufficient volume to get the deep, inner-lung breath” to provide a sufficient sample for testing. Deep lung or alveolar air provides the most reliable sample because it is in the alveolar region of the lungs where “alcohol vapor and other gases are exchanged between blood and breath.” Birchfield, 136 SCtat2168 (I). As the Supreme Court of the United States has recognized, obtaining this deep lung breath requires the cooperation of the person being tested because a suspect must blow deeply into a breathalyzer for several seconds in order to produce an adequate sample. See id. As the State conceded at oral argument, merely breathing normally is not sufficient.
The State argues that no compelled act is involved because a breath test only captures a “substance” naturally excreted by the human body, in the same way that collecting a urine sample does not violate a defendant’s right against compelled self-incrimination. See Green,
It is true that “all the air that is breathed into a breath analyzing machine, including deep lung air, sooner or later would be exhaled even without the test.” Birchfield,
To the extent we said otherwise in Klink, we did so with no analysis. With a mere citation to Green’s “natural excretion” principle, we summarily concluded in Klink that “compelling a defendant to submit to breath testing [is not] unconstitutional under Georgia law.” Klink,
(iv) We overrule Klink.
Under the doctrine of stare decisis, courts generally stand by their prior decisions, because “it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” State v. Hudson,
We have also said that stare decisis carries less weight when our prior precedent involved the interpretation of the Constitution, which is more difficult, than statutory interpretation for the legislative process to correct. See Ga. Dept. of Natural Resources v. Center for a Sustainable Coast, Inc.,
The stare decisis factors counsel that we overrule Klink. We already have established that the reasoning of Klink was unsound, cutting heavily in favor of overruling it. On the second factor, Klink was decided 17 years ago, and we have overruled decisions older than that. See, e.g., Woodard v. State,
Klink also does not involve substantial reliance interests. Substantial reliance interests are an important consideration for precedents involving contract and property rights, “where parties may have acted in conformance with existing legal rules in order to conduct transactions.” Citizens United v. Fed. Election Comm.,
outweigh the countervailing interest that all individuals share in having their constitutional rights fully protected. If it is clear that a practice is unlawful, individuals’ interest in its discontinuance clearly outweighs any law enforcement entitlement to its persistence. “The mere fact that law enforcement may be made more efficient can never by itself justify disregard of [constitutional rights].”
Gant,
The remaining factor of workability is not reason enough to preserve Klink. Under Klink, compelled breath tests are permitted regardless of how coercively cooperation may have been obtained. By rejecting Klink, law enforcement may have to consider whether a suspect has validly waived his right against self-incrimination under the totality of the circumstances. We recognize that requiring this determination before administering a breath test is more difficult, than simply waiting for an affirmative response after reading the implied consent notice. But this difficulty is not reason enough to persist in Klink’s constitutional error.
Accordingly, we overrule Klink and other cases to the extent they hold that Paragraph XVI of the Georgia Constitution does not protect against compelled breath tests or that the right to refuse to submit to such testing is not a constitutional right.
3. We reject Olevik’s facial and, “as-applied” challenges to the implied consent notice.
Olevik raises several challenges to OCGA § 40-5-67.1 (b) in claiming that he did not validly consent to the breath test. First, he argues that the statute is unconstitutionally coercive, both on its face and as applied, in violation of the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution and Paragraph XIII of the Georgia Constitution, because it is materially misleading and did not adequately inform him of his rights. Olevik also raises what he describes as an as-applied challenge to the implied consent notice
(a) Olevik’s facial challenges fail.
Olevik’s argument that OCGA § 40-5-67.1 (b) is facially coercive is essentially a claim that the implied consent notice is so misleading and inaccurate that no person can validly consent to a state-administered test once the notice has been read. Outside the First Amendment context, a plaintiff faces a difficult task in mounting a successful facial challenge to a statute, “because it requires one to establish that no set of circumstances exists under which the statute would be valid, i.e., that the law is unconstitutional in all of its applications, or at least that the statute lacks a plainly legitimate sweep.” Bello v. State,
The implied consent notice is not per se coercive on its face. Olevik argues that the misleading language of the implied consent notice violates the due process guarantees of the United States and Georgia Constitutions.
Before addressing Olevik’s specific arguments, we note that the implied consent statute has a “plainly legitimate sweep,” practically dooming Olevik’s facial challenge. All 50 states have adopted some form of an implied consent law that requires “motorists, as a condition of operating a motor vehicle within the State, to consent to BAC testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense.” Birchfield,
Aside from failing to show a lack of a legitimate sweep, Olevik has failed to demonstrate that the implied consent notice is unconstitutional in all of its applications. “In determining whether a defendant’s statement was voluntary as a matter of constitutional due process, a trial court must consider the totality of the circumstances.” Welbon v. State,
Because evaluating whether self-incrimination was compelled depends on the totality of the circumstances, Olevik cannot establish that the implied consent notice is materially misleading and substantively inaccurate in every application such that the notice invariably compels submission to the requested breath test. For example, Olevik argues that the implied consent notice misinforms a defendant that he is required to submit to a state-administered chemical test without informing suspects about their right to refuse testing. By its plain terms, the first sentence of the notice (“Georgia law requires you to submit to state administered chemical tests”) tells a suspect that Georgia law requires him to take a chemical test of his blood, breath, urine, or other bodily substance. This warning is, of course, true in the sense that the implied consent law has provided that
The implied consent notice also refers to the testing as “required” twice more. See OCGA § 40-5-67.1 (b) (2). Olevik would have us accept that every suspect would focus only on the notice’s repeated references to “required” testing at the exclusion of other language contained in the notice. But following the first instruction that “Georgia law requires you to submit to state administered chemical tests,” the notice states, “If you refuse this testing, your Georgia driver’s license or privilege to drive . . . will be suspended for a minimum period of one year.” The next sentence begins “ Your refusal to submit to the required testing may be offered into evidence against you at trial.” After giving other information, the notice ends with, “Will you submit to the state administered chemical tests of your (designate which tests) under the implied consent law?” Because the notice refers to a right to refuse, advises suspects of the consequences for doing so, and concludes with a request to submit to testing, a reasonable suspect relying solely on the notice should understand that the State is asking for a suspect’s cooperation, rather than demanding it, and that they have a right to refuse to cooperate.
Olevik next asserts that the notice is per se coercive because it contains misleading information about the consequences of taking a chemical test or refusing to do so. Specifically, Olevik observes that the notice warns suspects that a refusal to submit to testing will result in a license suspension and that a test result indicating a BAC of 0.08 grams or more only may result in a suspension. Olevik is correct that this information is not entirely accurate, as suspensions are mandated in either case. See OCGA § 40-5-67.1 (c) (providing that the Department of Public Safety “shall suspend” the license of a driver (21 or older) who has an alcohol concentration of 0.08 grams or more), (d) (the department “shall suspend” for a period of one year the license of a person who refuses to submit to a chemical test). But the mere fact that the notice misstates the likelihood of a license suspension does not, by itself, render the notice per se coercive regardless of other circumstances. We cannot say that the notice’s use of “may” instead of “shall” with respect to the likelihood of license suspension is likely to play a dispositive role in a reasonable person’s decision; when arrested and facing jail, the relative likelihood of also facing a civil administrative penalty may well recede into the background.
Olevik also challenges OCGA § 40-5-67.1 (b)’s failure to advise suspects that the test results will be used against him at trial. But he concedes that the primary purpose of seeking the test is to collect evidence to support a criminal prosecution. Olevik points to no law
Olevik’s facial claim rests on the premise that the notice would deceive a reasonable person. On the record before us, although Olevik points out deficiencies in the implied consent notice,
(b) Olevik’s “as-applied,”self-incrimination claim also fails.
Olevik also raises an “as-applied” challenge to the implied consent notice, arguing that the application of the statute violated his due process rights. Regardless of whether the reading of a notice compels a defendant to incriminate himself, it is not the reading of the notice that would constitute a due process violation or a violation of the right against compelled self-incrimination. Instead, it is the admission of a compelled breath test that would amount to a constitutional violation. See Chavez v. Martinez,
As stated above, whether a defendant is compelled to provide self-incriminating evidence in violation of Paragraph XVI is determined under the totality of the circumstances. Determining the voluntariness of (or lack of compulsion surrounding) a defendant’s incriminating statement or act involves considerations similar to those employed in determining whether a defendant voluntarily consented to a search. See Schneckloth v. Bustamonte,
the age of the accused, his education, his intelligence, the length of detention, whether the accused was advised of his constitutional rights, the prolonged nature of questioning, the use of physical punishment, and the psychological impact of all these factors on the accused. In determining voluntariness, no single factor is controlling.
Dean v. State,
This totality test is not foreign to trial courts. Trial courts already use the test to determine the voluntariness of a defendant’s consent to chemical testing as an exception to the warrant requirement under the Fourth Amendment and Paragraph XIII. The trial court here in fact considered the totality of the circumstances in concluding that Olevik consented to the breath test under Fourth Amendment principles.
Although the trial court erred in concluding that Olevik’s constitutional right against compelled self-incrimination was not at issue, its ruling is understandable; indeed, the outcome was required by binding case law. See Ga. Const. of 1983, Art. VI, Sec. VI, Par. VI (“The decisions of the Supreme Court shall bind all other courts as precedents.”). But we have now overturned that case law because it erred in stating that breath tests do not implicate the right against self-incrimination. Paragraph XVI protects against compelled breath tests and affords individuals a constitutional right to refuse testing.
Nevertheless, the trial court’s ultimate conclusion that Olevik was not compelled into submitting to the breath test must be affirmed. The court said it considered all the relevant factors to determine the voluntariness to consent to search, and these same factors are used in determining whether an incriminating act or statement was voluntary The only consideration that Olevik argues the court failed to consider properly is the allegedly coercive and misleading nature of the implied consent notice. But we have already concluded above in rejecting his facial challenge that the notice, standing alone, is not per se coercive. Olevik identifies no other factors surrounding his arrest that, in combination with the reading of the implied consent notice, coerced him into performing a self-incriminating act. Indeed, Olevik stipulated that the officer’s actions were not threatening or intimidating. Because the reading of the implied consent notice is not, by itself, coercive, and Olevik has offered nothing else, Olevik’s claim must fail. Accordingly, we affirm the trial court’s order denying Olevik’s motion to suppress and affirm his convictions.
Judgment affirmed.
Notes
Olevik also was found guilty of DUI per se, but the trial court merged this count into the DUI less safe count.
In Strong, we considered a defendant’s challenge to the police’s withdrawal of a blood sample from the defendant while he was unconscious on two grounds: (1) unreasonable search and seizure and (2) violation of the right against compelled self-incrimination. As to the first ground, we concluded that the warrantless search was proper as a search incident to an arrest, and even if the defendant was not under arrest, the “evanescent nature of alcohol in the blood” supported the extraction. Strong,
We have said that because Paragraph XIII contains the same language as the Fourth Amendment, it “is [tobe] applied in accord with the Fourth Amendment.” See Williams,
Or worse, it would be an invitation for judges “to read their own policy preferences into the law, as we all believe that our own policy views are wise and reasonable, which tempts us to assume, consciously or unconsciously, that the legislature could not have intended differently.” Merritt,
At the time of the 1877 Constitution, the word “criminate” was defined as “[t]o accuse or charge with a crime; to impeach.” Noah Webster, A Dictionary of the English Language 98 (1878). This is the same meaning that “incriminate” had at the time our 1983 Constitution was adopted. See Webster’s New World Dictionary 713 (2dCollegeed. 1980) (defining “incriminate” as “(1) to charge with a crime; accuse; (2) to involve in, or make appear guilty of, a crime or fault”). Although usage of “criminate” was common through the 19th century, the word has since become merely an archaic variant of “incriminate.” See Bryan A. Garner, A Dictionary of ModernAmerican Usage 366 (1998). And notes from the drafting of the 1983 Constitution also reflect this understanding. See Select Committee on Constitutional Revisions, 1977-1981, Transcript of Meetings, Committee to Revise Article I, meeting of the Subcommittee on Origin and Structures of Government, October 26, 1979, pp. 33-34.
There is no indication that “testimony” had a substantially broader definition in 1877. See Noah Webster, A Dictionary of the English Language 434 (1878) (defining “testify” as “[t]o make a solemn declaration; to establish some fact; to give testimony” and “[t]o witness to; to affirm or declare solemnly, or under oath”).
In its well-researched briefing, the State points us to comments made by John Matthews Guerard, a delegate to the 1877 Constitutional Convention, in proposing the self-incrimination provision. The State focuses particularly on Guerard’s statement that the provision would
Given our conclusion in Brown that compelling a defendant to provide a handwriting exemplar violates the defendant’s right against self-incrimination under the Georgia Constitution, the Court of Appeals’s earlier decision in Davis v. State,
It is important to recognize that while these situations do not implicate the right against compelled self-incrimination, the taking of physical evidence from a suspect often will constitute a search under the Fourth Amendment and Paragraph XIII, for which a warrant or an exception to the warrant requirement, such as consent or search incident to arrest, is required.
Given their inapplicability, we do not consider whether Green and Robin son were rightly decided.
See, e.g., Sauls v. State,
Although Olevik cites both federal and state constitutional due process provisions, he does not argue that they offer different protections or that his claims are to be analyzed differently in this context.
To the extent Olevik argues that we should impose a Miranda-stjle prophylactic rule to protect suspects’ Paragraph XVI rights (rights the scope of which, as we have explained, were well-established long before the Supreme Court’s decision in Miranda), he does not point us to a single decision of this Court or any textual or historical basis supporting such a step. In the absence of a more complete argument, we decline to address this issue.
The General Assembly may wish to amend the implied consent notice statute ; if it does, among the changes it may consider would be a clearer explication of the right to refuse testing, and a more accurate articulation of the likelihood of license suspension.