Fazio was convicted after a bench trial of driving under the
influence of alcohol to the extent it was less safe to do so,
in violation of OCGA § 40-6-391 (a) (1), and driving
with an unlawful blood alcohol concentration, in violation of
OCGA § 40-6-391 (a) (5). He now appeals, arguing that
the trial court erred when it refused to suppress the results
of his alcohol breath tests because, he contends, they were
obtained in violation of the United States and Georgia
constitutions. Finding no error, we affirm.
Fazio was arrested following a road-block stop of his vehicle
in Gwinnett County during the early morning hours of March
28, 2015. During the initial stop, the officer talked with
Fazio and observed signs of intoxication, including slurred
speech and the odor of alcohol. When Fazio failed several
field sobriety tests, the officer placed Fazio under arrest,
handcuffed him, and read him the following Georgia
"[i]mplied consent notice, " as stated in OCGA
§ 40-5-67.1 (b) (2):
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
[breath] under the implied consent law?
verbally agreed to the breath test by saying "yes."
The officer then escorted Fazio to an Intoxilyzer 9000
machine inside a police vehicle at the scene, prepared the
machine, and instructed Fazio to take a deep breath and blow
as hard as he could into the machine until told to stop. The
officer obtained two breath samples from Fazio, both of which
showed a blood-alcohol level above the legal limit. At no
point during the testing did Fazio express any objections or
unwillingness to take the tests.
appeal, Fazio makes several arguments as to why his motion to
suppress should have been granted. All are without merit.
First, he argues that the implied consent notice statute,
OCGA § 40-5-67.1 (b), violates the constitutional
prohibition of unreasonable searches and seizures under the
Fourth Amendment and its Georgia analogue found in Article 1,
Section 1, Paragraph XIII of the Georgia Constitution of
1983. But in another case decided today,
Olevik v. State, __Ga.__ (2) (b) (2017), we hold
that the implied consent statute is not unconstitutional
under the Fourth Amendment or Paragraph XIII because, even if
the statute were coercive, police may obtain a breath test
without a warrant as a search incident to arrest. See also
Birchfield v. North Dakota, 136 S.Ct. 2160, 2184 (C)
(3) (195 L.Ed.2d 560) (2016) (holding that a breath test (but
not a blood test) can be conducted categorically, without a
warrant, as a search incident to arrest).
Fazio argues that the implied consent statute is
unconstitutionally misleading and coercive on its face, in
violation of due process. He asserts that the statute does
not fully and accurately inform a suspect of his rights or
the consequences of his refusal to consent to a breath test.
But we consider and reject just such an argument in
Olevik, holding that, although the statute may
contain some deficiencies, "there is no evidence that
OCGA § 40-5-67.1 (b) creates widespread confusion about
drivers' rights and the consequences for refusing to
submit to a chemical test or for taking and failing that
test." See Olevik, __Ga. at__ (3) (a) (i).
"Because we cannot assume that the implied consent
notice standing alone will coerce reasonable people to whom
it is read, [Fazio's] facial challenge fails."
Fazio contends that the taking of a breath test violates his
constitutional right against compelled self-incrimination
because, he argues, a breath test requires the active
participation of the suspect - blowing hard into a tube. See
Ga. Const. of 1983, Art. I, Sec. I, Par. XVI. But, as Fazio
concedes, he did not raise this constitutional argument
below, and so we cannot review it on appeal. See Amos v.
State, 298 Ga. 804, 807 (2) (783 S.E.2d 900) (2016)
("We have consistently adhered to the requirement that a
constitutional challenge must be made as soon as
possible." (citation and punctuation omitted));
Bohannon v. State, 269 Ga. 130, 137 (4) (497 S.E.2d
552) (1998) (declining to review a constitutional challenge
to a statute because defendant's argument "was not
properly raised before the trial court, and was not ruled on
by the trial court, "even though other constitutional
challenges to the same statute were preserved).
affirmed. All the Justices concur.
 Paragraph XIII contains the same
language as the Fourth Amendment.
 We note that, even if Fazio had
preserved his compelled self-incrimination argument, it would
not have benefitted him. We hold in Olevik that,
while the taking of a breath test does implicate the right
against self-incrimination under the Georgia Constitution,
the implied consent statute, standing alone, is not
unconstitutionally coercive. Olevik, Ga. at (3) (b).
And Fazio, like the defendant in Olevik, has
identified "no other factors surrounding his arrest
that, in combination with the reading of the implied consent