Indeed, this Court has readily acknowledged that to be permitted to refuse to submit to chemical testing is not a right of constitutional magnitude but is one created by legislative enactment and that a violation of due process is not implicated when the statutory implied consent notice does not inform the driver that test results could be used against the driver at trial.” Sauls v. State, 293 Ga. 165, 167, 744 S.E.2d 735, 737 (2013), citing Klink v. State, 272 Ga. 605, 606(1), 533 S.E.2d 92 (2000).
Olevik marks a landmark change in how courts view the right to refuse a request for submission to a state-administered test: “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. Olevik v. State, No. S17A0738, 2017 WL 4582402, at *12 (Ga. Oct. 16, 2017). The cases that Olevik specifically overruled are Sauls v. State, 293 Ga. 165, 167, 744 S.E.2d 735 (2013); Cooper v. State, 277 Ga. 282, 290 (V), 587 S.E.2d 605 (2003); Lutz v. State, 274 Ga. 71, 73 (1), 548 S.E.2d 323 (2001); Fantasia v. State, 268 Ga. 512, 514 (2), 491 S.E.2d 318 (1997); Oliver v. State, 268 Ga. App. 290, 294 (2), 601 S.E.2d 774 (2004); State v. Coe, 243 Ga. App. 232, 234 (2), 533 S.E.2d 104 (2000); State v. Lord, 236 Ga. App. 868, 870, 513 S.E.2d 25 (1999); Nawrocki v. State, 235 Ga. App. 416, 417 (1), 510 S.E.2d 301 (1998).
The basis upon which courts routinely admitted evidence of and allowed the State to comment upon a Defendant’s refusal to submit to a breath test has been altered. The right to refuse, which our courts routinely called a matter of legislative grace, has been recognized as a constitutional right that should not be used as a sword against the citizen that exercises it. Additionally, in State v. Council, A17A1281, October 30, 2017, the Georgia Court of Appeals wrote: “a compelled breath test falls under the Georgia Constitution right against self-incrimination, which protects individuals from having the results of a compelled breath test or their refusal to submit to such testing, admitted against them in any criminal proceeding.” Council, supra at pp. 6-7.
In Olevik, the Georgia Supreme Court ruled that under Art. I, Sec, I, Paragraph XVI of the Georgia Constitution (Georgia’s right against self-incrimination), a state-administered breath test is an act of incrimination. The Olevik opinion made the following pertinent points :
(1) the Georgia Constitution paragraph XVI prohibits compelled DUI alcohol breath tests involving deep lung air;
(2) breath tests are not unreasonable searches under the 4th Amendment to the U.S. Constitution or paragraph XIII of the Georgia Constitution – compelled breath tests specifically violate paragraph XVI, not XIII or 4th Amendment to the U.S. Constitution;
(3) “Consent to search” still not required for breath, but a waiver of paragraph XVI of Georgia Constitution’s right against self-incrimination is required; (4) A Georgia Constitution self-incrimination waiver must presumably be knowing and voluntary, just like a 5th Amendment waiver under Miranda;
(4) The Georgia Implied Consent Warning does not automatically invalidate a test, nor does it amount to a waiver of the right against self-incrimination under paragraph XVI of the Georgia Constitution;
(5) Each case must be reviewed for a knowing, voluntary paragraph XVI waiver of the right against self-incrimination.
In Olevik’s particular case, the implied consent warning itself reasonably notified the defendant that he could refuse, despite some misleading language, and therefore it was not coercive in and of itself. Olevik did not argue that the Implied Consent Warning contained false information and was misleading, only that he was coerced by the Georgia Implied Consent Warning. The Olevik holding by the Georgia Supreme Court is therefore limited to the waiver not being involuntary and coercive. No ruling was made by the Supreme Court as to whether the Implied Consent Warning was misleading.
If there is now a constitutional right to refuse a breath test in Georgia, then the fact of refusal can’t raise a presumption of ETOH, refusal can’t be used as evidence against the defendant, and similar transaction evidence based on past refusal is inadmissible. To analyze whether a custodial statement is admissible, the court analyzes Miranda factors to determine if the right was waived. “In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.” Miranda v. Arizona, 384 U.S. 436, 468, 86 S. Ct. 1602, 1625, 16 L. Ed. 2d 694 (1966) (fn 37). But this prohibition may not apply if a person has not been induced to exercise his right against self-incrimination by the implicit assurance of a Miranda-type warning that such exercise would not be used against him – AND – that person testifies in his defense at trial. If no waiver is found, a statement cannot be used as evidence of guilt. The statement CAN, however, be used for impeachment if he testifies at trial. See, Harris v. New York, 401 U.S. 222 (1971). The US Supreme Court has also addressed the question in United States v. Goodwin, 457 U.S. 368 (102 S. Ct. 2485, 73 L. Ed. 2d 74)(1982):
“To punish a person because he has done what the law allows him to do is a due process violation “of the most basic sort.” Bordenkircher v. Hayes, 434 U.S. 357, 363. In a series of cases beginning with North Carolina v. Pearce and culminating in Bordenkircher v. Hayes, the Court has recognized this basic — and itself uncontroversial – principle. For while an individual certainly may be penalized for violating the law, he just as certainly may not be punished for exercising a protected statutory or constitutional right. (emphasis added)”.
A separate analysis is whether the statement or act was coerced or given voluntarily. An involuntary statement cannot be used for ANY purpose. Jackson v. Denno, 378 U.S. 368 (1964); Mincey v. Arizona. 437 U.S. 98 (1978).
Insofar as how a defendant’s rights regarding self-incrimination should be construed, the courts have said that they should liberally be construed “against compelling an accused to be a witness against himself, and refuse to permit any first or doubtful steps which may invade his rights in this respect.” Hudson v. State, 188 Ga. App. 684 (1988). To be continued…
-Author: George C. Creal, Jr
Image: Photo by Ashley Knedler on Unsplash