Are Breath Tests Self-Incriminating? Georgia Supreme Court Says Yes

The Georgia Supreme Court decides numerous cases each year. These cases consider a variety of issues in both criminal and civil law. One recent criminal case that the court decided was Olevik v. State. This case dealt with the issue of the right against self-incrimination in Georgia. The court was asked to determine “whether this state constitutional protection prohibits law enforcement from compelling a person suspected of DUI to blow their deep lung air into a breathalyzer.”

The defendant in the case, Frederick Olevik, was arrested and charged with driving under the influence. During his DUI stop, he agreed to submit to a breath test after being read the state's implied consent notice. He later moved to suppress this test arguing 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 rights against self-incrimination.” However, the trial court judge denied his motion, “concluding that his right against compelled self-incrimination was not violated because he voluntarily consented to the breath test.” He was subsequently convicted of three offenses including DUI Less Safe, having no brake lights, and failing to maintain a lane. He then appealed his case to the state's Supreme Court.

On appeal, Olevik contended 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.” The court evaluated a number of different issues as well as the issue of self-incrimination.

On this issue, the court looked at Georgia's Constitution and the particular provision that deals with self-incrimination. This provision, Paragraph XVI, states, “[n]o person shall be compelled to give testimony tending in any manner to be self-incriminating.” The court stated that Georgia has long held that the constitutional right against self-incrimination “protected a defendant from being compelled to incriminate himself by acts, not merely testimony.” The state constitution, therefore, provides more protection for its citizens than the Fifth Amendment of the U.S. Constitution, even though the wording only refers to “testimony.”

The court then determined that compelling a driver to take a breath test was requiring the driver to provide self-incriminating evidence. The court pointed out that in order to get a breath sample, a person must cooperate and “blow deeply into a breathalyzer for several seconds in order to produce an adequate sample.” The court continued, “Indeed, for the State to be able to test an individual's breath for alcohol content, it is required that the defendant cooperate by performing an act.” The court reasoned that “[c]ompelling a defendant to perform an act that is incriminating in nature is precisely what Paragraph XVI prohibits.”

After determining that coerced breath tests were self-incriminating, the court looked at Olevik's particular situation. It concluded that while the trial court had “ erred in in [sic] concluding that [his] constitutional right against compelled self-incrimination was not at issue,” its “ultimate decision that Olevik was not compelled into submitting to the breath test must be affirmed.” The court stated that the lower court had “considered all relevant factors to determine the voluntariness to consent to search, and these same factors are used in determining whether an incriminating act or statement was voluntary.” The Supreme Court further stated as "the notice was not per se coercive and Olevik hadn't identified any other factors that would imply his consent to the test was coerced, his “claim must fail.” The court then affirmed the trial court's denial of his motion to suppress and affirmed his convictions.