Olevik v. State

302 Ga. 228

806 S.E.2d 505

OLEVIK

v.The STATE.

S17A0738

Supreme Court of Georgia.

Decided: October 16, 2017

Rosanna M. Szabo, Solicitor-General, Samuel R. d'Entremont, Joelle M. Nazaire, Assistant Solicitors- General, for appellee.

Peterson, Justice.

The Georgia Constitution protects each of us from being forced to incriminate ourself. Unlike the similar right guaranteed by the Fifth Amendment to the U.S. 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 a person suspected of DUI to blow his deep lung air into a breathalyzer. A nearly unbroken line of precedent dating back to 1879 leads us to conclude that it does, although the appellant here still loses because the language of the implied consent notice statute he challenges is not per se coercive.

Frederick Olevik was convicted of DUI less safe, failure to maintain a lane, and no brake lights.¹ Olevik appeals from his DUI conviction, challenging the denial of his motion to suppress the results of a state-administered breath test on the grounds that the implied consent notice statute, OCGA § 40-5-67.1 (b), is unconstitutional on its face and as applied to him. Olevik argues that his right against compelled self-incrimination preserved by the Georgia Constitution was implicated when law enforcement asked him to expel deep lung air into a breathalyzer, that the materially misleading language of the implied consent notice is coercive per se and in fact did compel him to perform this act, and thus the admission of his breath test results violated his right against compelled self-incrimination under the Georgia Constitution and his due process rights. We agree with Olevik that submitting to a breath test implicates a person's right against compelled self-incrimination under the Georgia Constitution, and we overrule prior decisions that held otherwise. We nevertheless reject Olevik's facial challenges to the implied consent notice statute, because the language of that notice is not per se coercive. Our previous decisions prevented the trial court from fully considering Olevik's argument that, based on a totality of the circumstances in this case, the language of the implied consent notice actually coerced him to incriminate himself. Nevertheless, because Olevik offered the trial court no evidence in support of his claim beyond the mere language of the statute (which, standing alone, is not coercive), he could not prevail on remand and so we affirm.

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, ––– U.S. ––––, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016). In Georgia, driving with a blood alcohol content ("BAC") of 0.08 grams or more is per se unlawful (DUI per se), and regardless of BAC, it is unlawful for a person to drive under the influence of alcohol or drugs to the extent it is less safe to do so (DUI less safe). See OCGA § 40-6-391 (a). Measuring a person's BAC is accomplished through a chemical test of the person's breath, blood, or urine, and these tests typically require the cooperation of the suspect. To elicit such cooperation, the General Assembly has enacted an implied consent statute, providing that drivers have agreed to submit to chemical testing as a condition of receiving a driver's license and that a person's driving privilege will be suspended if he or she refuses to take a chemical test after being arrested for a DUI offense or having been involved in a traffic accident resulting in serious injuries or fatalities. OCGA §§ 40-5-55 (a) ; 40-5-67.1 (d). When drivers are arrested for DUI, police officers ask them to submit to a chemical test; the implied consent statute prescribes the language the officers are required to use. For drivers aged 21 years or older (like Olevik), that language is as follows:

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) Olevik'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 that Olevik's eyes were bloodshot and watery, his speech was slow, and he smelled strongly of alcohol. Olevik admitted to the police that he had consumed four or five beers prior to driving. He agreed to undergo field sobriety tests and exhibited six out of six clues on the horizontal gaze nystagmus test. The walk-and-turn and one-leg-stand tests were not conducted because Olevik had certain physical limitations. After Olevik also tested positive for alcohol on a portable alco-sensor machine, police arrested Olevik and read him the statutorily mandated, age-appropriate implied consent notice. Olevik agreed to submit to a state-administered breath test, the results of which revealed that he had a BAC of 0.113.

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, 272 Ga. 605, 533 S.E.2d 92 (2000), precludes his claims. But recent decisions of the Supreme Court of the United States and this Court have shaken the analytical underpinnings of Klink, and so, as Olevik urges us to do, we reexamine whether Klink remains good law. See Kendrick v. State, 335 Ga. App. 766, 770 n.3, 782 S.E.2d 842 (2016) ("[S]ubsequent development of the law may have substantially eroded Klink's analytical foundation[.]"). We conclude that Klink was wrongly decided at least to the extent that it concluded that a breath test did not implicate the state constitutional right against compelled self-incrimination and, after determining that stare decisis does not counsel preserving Klink, overrule it to that extent.

(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 "compelling a defendant to submit to [blood and] breath testing [is not] unconstitutional under Georgia law[,]" and thus "[t]he right to refuse to submit to state administered testing is not a constitutional right, but one created by the legislature." Klink, 272 Ga. at 606 (1), 533 S.E.2d 92. Klink relied on two prior decisions— Allen v. State, 254 Ga. 433, 330 S.E.2d 588 (1985) and Green v. State, 260 Ga. 625, 398 S.E.2d 360 (1990) —for these conclusions. In Allen, we held that, "[i]n Georgia, the state may constitutionally take a blood sample from a defendant without his consent. Our ‘Implied Consent Statute’ thus grants a suspect an opportunity, not afforded him by our constitution, to refuse to take a blood-alcohol test." 254 Ga. at 434 (1) (a), 330 S.E.2d 588 (citations omitted). And in Green, we held that urine testing did not violate the right against self-incrimination because it was merely "the use of a substance naturally excreted by the human body." 260 Ga. at 627 (2), 398 S.E.2d 360. We went on in Klink to explain that the implied consent notice did not violate the Due Process Clause because "[t]he choice provided by the statute at question is not coercive because it is not ‘so painful, dangerous, or severe, or so violative of religious beliefs' that no real choice exists." Id at 606 (1), 533 S.E.2d 92 (quoting South Dakota v. Neville, 459 U.S. 553, 563, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) ). Moreover, we...