In the recently decided case of Olevik a/k/a Plevik v. State, S17A0738 (Ga. Sup. Ct., decided October 16, 2017), the Supreme Court of Georgia held that under Article I, Section I of the Constitution of the State of Georgia, “Paragraph XVI protects against compelled breath tests and affords individuals a constitutional right to refuse testing.” Id. at p. 48 of the slip opinion. This case may have a major impact on Georgia DUI (O.C.G.A. § 40-6-391) criminal prosecutions, and may have some effect on Georgia civil lawsuits where DUI offenders cause injuries.
Georgia has DUI implied consent statutes (most pertinent for this brief summary: O.C.G.A. §§ 40-5-55, 40-5-67.1, and 40-6-392) in which DUI suspects, once placed under arrest, are typically read an implied consent notice in which they are informed that Georgia law requires them to consent to a state-administered chemical test of their blood, breath, urine, or other bodily substances to determine if they are under the influence of alcohol or drugs. Further, they are informed that if they refuse the testing their driver's license will be suspended.
Case law for decades up until the Olevik a/k/a Plevik decision held that although the Georgia General Assembly provided a statutory right to refuse implied consent testing, the legislature through O.C.G.A. § 40-6-392(d) had limited that right to allow for admission of the refusal in any criminal trial. In other words, it was not a right such as a federal constitutional Fourth Amendment right to refuse consent to a search in which a suspect's refusal could not be used against him at trial. In Georgia DUI trials, when a suspect refused an implied consent test, that refusal was admissible in evidence to show that a test would have shown intoxicating substances and to demonstrate a consciousness of guilt.
The Olevik a/k/a Plevik opinion seems to indicate that there is now a Georgia constitutional, as opposed to a federal constitutional or Georgia statutory, right to refuse implied consent testing. This right is based on greater self-incrimination protections afforded people in Georgia under Article I, Section I, Paragraph XVI of the Georgia Constitution than those protections given under the Fifth Amendment of the United States Constitution. The argument now is that with a constitutional, as a opposed to a mere statutory, right to refuse implied consent testing, breath test refusals should not be admissible into evidence at criminal trials.
However, this is a very undetermined area of Georgia law at this time. Prosecutors are now arguing that the holding of the Georgia Supreme Court in Olevik a/k/a Plevik is found at page 36 of the slip opinion which states, "[a]ccordingly, 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." Prosecutors are focusing on the word "such" in page 36 to claim that the holding, which, as cited in the first paragraph of this blog post above from page 48 of the slip opinion does not contain the word "such," means that there is only a constitutional right to refuse compelled breath testing. Defense attorneys are obviously arguing that it cannot be any clearer when the Court announced its holding at page 48 that there is a constitutional right to refuse in Georgia.
It appears that there is likely now a constitutional right to refuse testing in which a refusal of a breath test cannot be used against a DUI suspect in a criminal trial. This is because compelled breath testing was already unlawful prior to this new decision. However, the law is unsettled and will be clarified in subsequent opinions in the next year.
This can have a major impact on DUI criminal prosecutions as breath test refusal cases may be harder to prosecute. It may also result in more police departments obtaining search warrants to draw blood samples in the future when suspects refuse breath tests. In civil cases, it can potentially make those existing DUI injury cases more difficult to settle as some DUI prosecutions that would have resulted in convictions may end up with crucial evidence inadmissible and less bargaining power when the question of whether a liable party was driving under the influence is still at issue. However, in civil cases, DUI breath test refusals in Georgia should still be admissible as criminal self-incrimination rights should not prohibit a police officer from testifying about a DUI driver's refusal in a civil trial.
If you would like to speak with an attorney about a DUI injury or fatality case, please contact Richard Armond at (678) 661-9585 for a free consultation today.
Attorney Richard Armond of The Armond Firm, LLC, handles serious personal injury and wrongful death cases throughout metro Atlanta and the State of Georgia. He is licensed to practice law by the State Bar of Georgia and is based in Lawrenceville, one mile down the road from the Gwinnett Justice and Administration Center. Call him today for a free consultation at (678) 661-9585.The information above is for informational purposes only as of the date of publication and should not be relied upon as legal advice, nor does the reading of it form an attorney-client relationship. Always consult directly with an attorney for legal advice.