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Olevik v. State

Supreme Court of Georgia

October 16, 2017

OLEVIK
v.
THE STATE.

          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 their 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 refused 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 that 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 test, 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 test 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). 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) (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 from the human body." 260 Ga. at 627 (2). 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. (quoting South Dakota v. Neville, 459 U.S. 553, 563 (103 S.Ct. 916, 74 L.Ed.2d 748) (1983)). Moreover, we explained, because the General Assembly created the right to refuse the test, the General Assembly's limitation of that right through the implied consent language was unobjectionable. Id. Klink's holding rests in part on cases that are not good law.

         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, 231 Ga. 514 (202 S.E.2d 408) (1973). Allen cited Strong for the principle that "the state may take a blood sample from a defendant without his consent." Allen, 254 Ga. at 434 (1) (a). Allen's pronouncement that "the state may take a blood sample from a defendant without his consent" was an accurate assessment of Strong, but we now understand it not to be an accurate statement of the law.

         As has been made clear in more recent decisions, Strong's analysis concerning warrantless blood tests was incorrect.[2] In Birchfield, U.S. at, the Supreme Court of the United States explained that the natural dissipation of alcohol from the bloodstream is not a per se exigent circumstance always justifying the warrantless taking of a blood sample, and concluded that although breath tests fall within the search incident to arrest exception to the warrant requirement, blood tests do not. And even before Birchfield, we held in Williams v. State, 296 Ga. 817 (771 S.E.2d 373) (2015), that exigent circumstances are not categorically present in every DUI case and reiterated that the constitutional protections under Article I, Section I, Paragraph XIII ("Paragraph XIII") of the Georgia Constitution, like the Fourth Amendment which contains similar language, require the extraction of blood to be conducted either pursuant to a search warrant or under a recognized exception to the warrant requirement. Williams, 296 Ga. at 821. We ruled that the only exception to the warrant requirement at issue in Williams was the purported consent of the suspect, disapproving Strong to the extent it held that the natural dissipation of blood categorically supports a finding of an exigent circumstance justifying a warrantless search. Williams, 296 Ga. at 821. We remanded the case for a determination of the voluntariness of the defendant's consent because merely submitting to a state-administered test after having been read the implied consent notice did not per se establish voluntary consent for constitutional purposes. Id. at 821-823.

         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, 272 Ga. at 606 (1). We take this opportunity to revisit Klink's analysis regarding the applicability to breath tests of both the state constitutional right against unreasonable searches and seizures and the state constitutional right against compelled self-incrimination. The latter of these rights requires a more extended analysis.

         (b) Neither the Fourth Amendment to the U.S. Constitution nor Paragraph XIII of the Georgia Constitution prohibits warrantless breath tests as searches incident to arrest.

         The Fourth Amendment and Paragraph XIII of the Georgia Constitution protect against unreasonable searches and seizures. Cooper v. State, 277 Ga. 282, 285 (III) (587 S.E.2d 605) (2003). A warrantless search is per se unreasonable unless it falls within a recognized exception to the warrant requirement. Williams, 296 Ga. at 819. A warrant is not needed where consent is given, and in some cases the doctrine of search incident to lawful arrest also obviates the need for a warrant. Arizona v. Gant, 556 U.S. 332, 338 (129 S.Ct. 1710, 173 L.Ed.2d 485) (2009); Williams, 296 Ga. at 821.

         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, U.S. at . Because the search incident to arrest exception to the warrant requirement applies to breath tests in that context, there is no need to obtain consent for a breath test to support a warrantless search for Fourth Amendment purposes after a valid arrest. Consequently, even assuming that the implied consent notice was coercive, securing a breath test after arrest based on reading the implied consent notice would not violate the Fourth Amendment, because the warrantless breath test is permitted as a search incident to arrest.

         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.[3]

         (c) Paragraph XVI, properly understood, applies to breath tests.

         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, 282 Ga. 247, 250-251 (3) (647 S.E.2d 560) (2007); see also Schmerber v. California, 384 U.S. 757, 764 (86 S.Ct. 1826, 16 L.Ed.2d 908) (1966) (right against compelled self-incrimination bars compelling "communications" or "testimony, " but "compulsion which makes a suspect or accused the source of real or physical evidence does not violate it"). But we are not meeting Paragraph XVI for the first time; this constitutional provision has been carried over from prior constitutions, and it has brought with it a long history of interpretation. The State argues that our historical interpretation of this provision is wrong, both as a matter of text and in the light of the legislative history of a previous constitution. Nevertheless, this history compels our conclusion today.

         (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 it at the time when they made it. To deny this is to insist that a fraud shall be perpetrated upon those makers or upon some of them." Padelford, Fay & Co. v. Savannah, 14 Ga. 438, 454 (1854) (emphasis in original). "A provision of the constitution is to be construed in the sense in which it was understood by the framers and the people at the time of its adoption." Collins v. Mills, 198 Ga. 18, 22 (30 S.E.2d 866) (1944) (citing South Carolina v. United States, 199 U.S. 437, 448 (26 S.Ct. 110, 50 LE 261) (1905) ("The Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted, it means now."), overruled on other grounds by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (105 S.Ct., 83 L.Ed.2d 1016) (1985)).

         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 Georgia Motor Trucking Assn. v. Ga. Dept. of Revenue, 301 Ga. 354, 356 (2) (801 S.E.2d 9) (2017). And although the text is always our starting point for determining original public meaning (and often our ending point, as well), the broader context in which that text was enacted may also be a critical consideration. "Constitutions, like statutes, are properly to be expounded in the light of conditions existing at the time of their adoption." Clarke v. Johnson, 199 Ga. 163, 166 (33 S.E.2d 425) (1945) (citation and punctuation omitted); see also DeJarnette v. Hosp. Auth. of Albany, 195 Ga. 189, 205 (7) (23 S.E.2d 716) (1942) (the meaning and effect of constitutional amendments "is to be determined in connection, not only with the common law and the constitution, but also with reference to other statutes and the decisions of the courts").

         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 ...


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