Petition for Writ of Certiorari — Lindsay Waters, Petitioner v. Georgia
Supreme Court briefFeb 3, 2020
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APPENDIX TABLE OF CONTENTS
OPINIONS AND ORDERS
Order of the Supreme Court of Georgia Denying
a Petition for Writ of Certiorari
(November 4, 2019) ............................................ 1a
Opinion of Court of Appeals of Georgia
(March 4, 2019) ................................................... 2a
Order of Supreme Court of Georgia
(April 30, 2018) ................................................... 9a
Order of the State Court of Cobb County of the
State of Georgia (September 17, 2014) ............ 11a
Order of the State Court of Cobb County Denying
Motion to Reconsider (September 2, 2015) ...... 13a
Opinion of the Supreme Court of Georgia in
Olevik v. State (of Georgia), 302 Ga. 228,
806 S.E.2d 505 (October 16, 2017) ................... 15a
App.1a
ORDER OF THE
SUPREME COURT OF GEORGIA DENYING A
PETITION FOR WRIT OF CERTIORARI
(NOVEMBER 4, 2019)
SUPREME COURT OF GEORGIA
________________________
LINDSAY WATERS
v.
THE STATE
________________________
Case No. S19C0968
Court of Appeals Case No. A18A2031
The Supreme Court today denied the Petition for
Certiorari in this Case
All the Justice concur.
Court of Appeals Case No. A18A2031
App.2a
OPINION OF COURT OF APPEALS OF GEORGIA
(MARCH 4, 2019)
IN THE COURT OF APPEALS OF GEORGIA
________________________
WATERS
v.
THE STATE
________________________
No. A18A2031
Before: DILLARD, C.J., DOYLE, P.J.,
and MERCIER, Judge.
After being convicted of driving under the influence
(per se and less safe) and failure to maintain lane,
Lindsay Waters filed an appeal in the Supreme
Court of Georgia “to challenge the constitutionality of
Georgia’s Implied Consent . . . scheme, OCGA § 40-567.1, both on its face and as applied.” The Supreme
Court transferred the appeal to this Court, stating in
its transfer order: “[T]his Court recently rejected facial
and as-applied constitutional challenges like those
raised here to OCGA § 40-5-67.1(b)(2) in Olevik v.
State, 302 Ga. 228, 246-252 (3)(a), (b) (806 SE.2d 505)
(2017). To the extent [Waters] attempts other constitutional arguments, any such challenges were neither
raised nor ruled on below.” Case No. S18A0423 (decided
April 30, 2018). Further, the Court stated: “[A]s in
Olevik, [Waters’s] as-applied challenge is in reality a
challenge to the admission of the blood test results,
rather than a challenge to the statute.” Id.
App.3a
Waters did not submit a new brief after the case
was transferred to this Court, so our review is based
on the briefs she submitted to the Supreme Court. In
those briefs, Waters challenges the constitutionality of
Georgia’s implied consent “scheme” (facially and as
applied) and argues that her consent was not voluntary
due to the “inherent[ly] coercive pressures of a custodial
environment.” As set out above, the Supreme Court
expressly rejected Waters’s facial and as-applied challenges to the implied consent law. Therefore, our
review is limited to her challenge to the admission of
the blood test results to the extent the challenge is
unrelated to the constitutionality of the implied consent
law (either on its face or as it was applied in this
case))1
1 We note that on February 18, 2019, the Supreme Court of
Georgia decided Elliott v. State, 2019 Ga. LEXIS 112 (Case No.
S18A1204). In Elliott, the Court held that the protection against
compelled self-incrimination provided by Article I, Section I,
Paragraph XVI of the Georgia Constitution of 1983 affords a
defendant the right to refuse a chemical breath test and that
such refusal cannot be admitted in evidence against him or her.
Elliott, supra at *1-2. The Elliott decision does not affect our
decision in this case for two reasons. First, the Supreme Court
specifically stated in its transfer order in this case that it recently
rejected in Olevik the facial and as-applied constitutional challenges Waters raises in this appeal; in Elliott, the Court expressly
“adhere[s] to [its] decision in Olevik, Elliott, supra at *20. Waters
is bound by the Supreme Court’s ruling in her case. See OCGA
§ 9-11-60 (h) (“[A]ny ruling by the Supreme Court or the Court
of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or
the Court of Appeals as the case may be.”). Second, the Elliott
Court reiterated that its Paragraph XVI analysis was limited to
breath tests, and that Paragraph XVI “was not implicated by a
blood test.” Id. at *90, n.30 (emphasis supplied). As the Court
noted in Olevik, the extraction of blood does not implicate a
App.4a
Although Waters’s challenge is almost entirely
based on the unconstitutionality of the implied consent
scheme, she raises, to some extent, a separate issue
by asserting that her consent to the blood test was
not voluntary in light of “the inherently coercive
environment of a custodial arrest.” Waters states
that she was in custody for 90 minutes before agreeing
to submit to the blood test and that the officer “testified that she did not want to take the blood test.” The
argument is without merit.
Before trial, Waters moved to suppress the blood
test results. After hearing evidence and argument,
the trial court denied Waters’s motion finding, inter
alia, that Waters voluntarily consented to the blood
test. The test results were admitted at trial.
In reviewing a trial court’s ruling on a motion
to suppress, this Court must construe the
record in the light most favorable to the
factual findings and judgment of the trial
court and accept the trial court’s findings
of disputed fact unless they are clearly
erroneous.
State v. Turner, 304 Ga. 356 (818 SE.2d 589) (2018)
(citations omitted). “[T]he trial court’s application of
the law to undisputed facts is subject to de novo
review.” State v. Clay, 339 Ga. App. 473 (793 SE.2d
636) (2016) (citation and punctuation omitted); see
Bergstrom v. State, 347 Ga. App. 295 (819 SE.2d 84)
(2018).
defendant’s right under Georgia law against compelled selfincrimination. Olevik, supra at 232 (2)(a), n.2.
App.5a
Because the extraction of a suspect’s blood is a
search within the meaning of the Fourth Amendment,
absent a warrant, the State must show that the extraction falls into one of the specifically established exceptions to the warrant requirement, such as voluntary
consent. See Williams v. State, 296 Ga. 817, 819-821
(771 SE.2d 373) (2015); Kendrick v. State, 335 Ga.
App. 766, 768 (782 SE.2d 842) (2016).
Consent is a valid basis for a warrantless
search where it is given freely and voluntarily . . . . [T]he only question in regard to
the validity of the search is whether the
State met its burden of proving that [Waters]
actually consented freely and voluntarily
under the totality of the circumstances.
Kendrick, supra (citation and punctuation omitted).
“A consent to search will normally be held voluntary
if the totality of the circumstances fails to show that the
officers used fear, intimidation, threat of physical
punishment, or lengthy detention to obtain the consent.” Id. at 769 (citation and punctuation omitted).
“[W]hile knowledge of the right to refuse consent is
one factor to be taken into account, the government
need not establish such knowledge as the sine qua
non of an effective consent.” Id. Notably, the use of
handcuffs does not negate a person’s ability to give
consent. See MacMaster v. State, 344 Ga. App. 222,
227 (1) (a) (809 SE.2d 478) (2018).
In this case, the evidence shows that a police officer
initiated a traffic stop after seeing the car that Waters
was driving “weaving.” The officer detected a smell of
alcohol coming from Waters’s person and noticed
that Waters’s speech was slurred and her eyes were
“glassed-over.” Waters said she was on her way to or
App.6a
from a bar. At the officer’s request, Waters exited the
car. She was unsteady on her feet. The officer and a
supervisor who arrived on the scene asked Waters to
perform various field sobriety tests. Waters agreed to
submit to some of the tests (horizontal gaze nystagmus
and Romberg) and refused to submit to other tests
(Alco-Sensor, walk-and-turn, and one-leg stand). Based
on Waters’s performance on the field tests and the
officer’s observations, the officer concluded that Waters
was under the influence of alcohol (less safe) and
placed her under arrest for DUI. The officer then
read to her the implied consent warning, and Waters
gave her consent to take a blood test. The roadside
encounter, from the stop to the arrest, lasted approximately 33 minutes. The officer then transported
Waters to a hospital for the blood test, where she used
the restroom and asked hospital personnel and the
officer numerous questions about the test; Waters
was handcuffed at the time. Because they had been
at the hospital waiting for about one to one-and-ahalf hours before the blood was drawn and Waters
repeatedly asked questions about the test, the officer
read the implied consent warning to her again “so
that it was fresh in her mind so she would have
another opportunity to consent to it or not consent to
it.” He then asked Waters again if she consented to
the test, to which she replied that she did, and her
blood was drawn.
Despite Waters’s contention, the evidence shows
that she initially consented to the blood test after 33
minutes, not 90 minutes; it was after approximately
90 minutes that she stated her consent a second time
(while waiting at the hospital for her blood to be
drawn). Her claim (in her first supplemental brief) that
App.7a
the officer “testified that she did not want to take the
blood test” is not accurate. Instead, the officer testified
that he thought Waters was asking and repeating
questions at the hospital as a “stalling” tactic, and
that he “felt” or “thought” that she was repeating
questions to avoid the test. There is no evidence that
Waters ever said she did not want to take the test or
that she ever withdrew the consent she gave at the
roadside (and again in the hospital) after being read
the implied consent notice. Although Waters asserts
that she was not advised of her constitutional rights
before she gave her consent, her knowledge of those
rights or of her right to refuse consent are factors to
be considered in assessing the voluntariness of her
response—they are not in and of themselves determinative. See Olevik, supra at 251-252 (3)(b). The
evidence does not show that the officers used fear,
intimidation, threat of physical punishment or lengthy
detention to obtain Waters’s consent. See Kendrick,
supra; Oh v. State, 345 Ga. App. 729, 737-738 (3) (815
SE.2d 95) (2018) (trial court did not err by denying
motion to suppress based on claim that consent to
testing was not voluntary where, inter alia, traffic
stop lasted under 40 minutes and did not appear to be
unreasonably or needlessly extended); Diaz v. State,
344 Ga. App. 291, 301(1) (810 SE.2d 566) (2018) (trial
court did not err in concluding that, under the totality
of circumstances, appellant voluntarily consented to
blood test after being read implied consent notice,
where appellant was at hospital more than two hours
and had been given medications for his injuries). In
light of the totality of circumstances surrounding
Waters’s consent to the blood test, the trial court did
not err by concluding that her consent was voluntarily
given. See Oh, supra. Thus, the trial court did not err
App.8a
by denying her motion to suppress. See generally id.;
Olevik, supra at 252 (3)(b).
Judgment affirmed. Dillard, C. J., and Doyle, P.
J., concur.
App.9a
ORDER OF SUPREME COURT OF GEORGIA
(APRIL 30, 2018)
SUPREME COURT OF GEORGIA
________________________
LINDSAY WATERS
v.
THE STATE
________________________
Case No. S19C0968
Court of Appeals Case No. A18A2031
The Honorable Supreme Court met
pursuant to adjournment.
The following order was passed:
LINDSAY WATERS v. THE ST ATE
Appellant appeals her conviction for driving under
the influence and seeks to invoke this Court’s constitutional question jurisdiction. The trial court rejected
appellant’s facial and as-applied Fourth Amendment/
search and seizure constitutional challenges to the
implied consent law, OCGA § 40-5-67.1(b) (2), which she
contends is coercive. However, this Court recently
rejected facial and as-applied constitutional challenges
like those raised here to OCGA § 40-5-67.1(b)(2) in
Olevik v. State, 302 Ga. 228, 246-252 (3)(a), (b) (806
SE.2d 505) (2017). To the extent appellant attempts
other constitutional arguments, any such challenges
were neither raised nor ruled on below.
App.10a
Our constitutional question jurisdiction does not
extend to challenges to laws previously held to be
constitutional against the same attack. See City of
Decatur v. DeKalb County, 284 Ga. 434, 435-437 (668
SE.2d 247) (2008). And, as in Olevik, appellant’s asapplied challenge is in reality a challenge to the admission of the blood test results, rather than a challenge to the statute. Id. at 250-251(3)(b). Therefore, the
as-applied challenge does not invoke this Court’s
jurisdiction.
As no other basis for this Court’s jurisdiction
appears in the record, see Ga. Const. of 1983, Art. VI,
Sec. VI, Par. II-III; OCGA § 15-3-3.1, this case is hereby transferred to the Court of Appeals.
All the Justices concur.
App.11a
ORDER OF THE STATE COURT OF COBB
COUNTY OF THE STATE OF GEORGIA
(SEPTEMBER 17, 2014)
IN THE STATE COURT OF COBB COUNTY
STATE OF GEORGIA
________________________
STATE OF GEORGIA
v.
LINDSAY WATERS
________________________
Case No. 13-T-10704
Before: Henry R. THOMSON,
Judge, State Court Cobb County
Upon hearing evidence and argument of counsel,
the Court makes the following findings on the Defendant’s Motion to Suppress:
1.
The Defendant was stopped after honking her car
horn at a passing patrol car. Therefore, reasonable,
articulable suspicion existed which justified a traffic
stop under O.C.G.A. 40-8-70(a).
2.
After the arresting officer stopped the Defendant’s
vehicle and spoke with the Defendant, the odor of
alcohol and the Defendant’s slurred speech provided
App.12a
sufficient evidence to expand the scope of the stop to
an investigation for Driving Under the Influence.
3.
The totality of the circumstances, including the
odor of alcohol, slurred speech, the performance on
field sobriety tests, and the Defendant’s admission of
coming from a bar, supplied sufficient probable cause
to justify the arrest for Driving Under the Influence.
4.
The Implied Consent notice was properly read,
and the Defendant voluntarily consented to the test.
5.
There is nothing in the evidence that suggests
the Defendant’s blood was improperly drawn, handled,
or tested.
6.
The Defendant’s argument that the Georgia
Implied Consent law is unconstitutional is without
merit.
Based upon the above findings of fact and law,
the Defendant’s Motion to Suppress is hereby DENIED.
So ordered this 17th day of September, 2014
/s/ Henry R. Thompson
Judge
State Court Cobb County
App.13a
ORDER OF THE STATE COURT OF COBB
COUNTY DENYING MOTION TO RECONSIDER
(SEPTEMBER 2, 2015)
IN THE STATE COURT OF COBB COUNTY
STATE OF GEORGIA
________________________
STATE OF GEORGIA
v.
LINDSAY WATERS
________________________
Case No. 13-T-10704
Before: Henry R THOMPSON,
Judge, State Court Cobb County
ORDER ON MOTION TO RECONSIDER
Upon hearing evidence and argument of counsel,
the Court makes the following findings on the Defendant’s Motion to Suppress:
1.
The ORDER which was filed on September 18,
2014 denying Defendant’s Motion to Suppress is
hereby incorporated in its entirety.
2.
The Georgia Implied Consent notice which was
read to the Defendant is not so necessarily coercive in
nature that it negates the possibility of actual consent
being obtained. The Supreme Court of Georgia, in
App.14a
Williams v. State, S14A1625, remanded the case to
the trial court for a determination of whether “actual,
and therefore voluntary” consent was obtained after
the Implied Consent notice was read to the arrestee.
It necessarily follows that the Supreme Court is of
the opinion that “actual, and therefore voluntary”
consent is indeed possible after a reading of the
Implied Consent notice.
3.
Based on a totality of the circumstances, the
consent obtained after the reading of the Implied
Consent notice in this case was freely and voluntarily
made by the Defendant, and was not the product of
duress, coercion, or hope of benefit, and was, therefore,
“actual” consent.
Based upon the above findings of fact and law, the
Defendant’s Motion to Reconsider is hereby DENIED.
So Ordered this 2nd day of September, 2015
/s/ Henry R. Thompson
Judge
State Court Cobb County
App.15a
OPINION OF THE SUPREME COURT OF
GEORGIA IN OLEVIK V. STATE (OF GEORGIA),
302 GA. 228, 806 S.E.2D 505
(OCTOBER 16, 2017)
SUPREME COURT OF GEORGIA
________________________
OLEVIK
v.
THE STATE
________________________
No. S17A0738
Before: PETERSON, Justice.
Peterson, Justice.
The Georgia Constitution protects each of us from
being forced to incriminate yourself. 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.
App.16a
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 stateadministered 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 selfincrimination 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 Olevik also was found guilty of DUI per se, but the trial court
merged this count into the DUI less safe count.
App.17a
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
App.18a
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
App.19a
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
App.20a
and as applied, coercing him to submit to a breath
test in violation of his right against compelled selfincrimination 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
App.21a
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 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 428 (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), 330 S.E.2d 588.
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
App.22a
was incorrect.2 In Birchfield, ___ U.S. at ___, 136
S.Ct. at 2186 (VII), 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,
2 In Strong, we considered a defendant’s challenge to the police’s
withdrawal of a blood sample from the defendant while he was
unconscious on two grounds: (1) unreasonable search and seizure
and (2) violation of the right against compelled self-incrimination.
As to the first ground, we concluded that the warrantless search
was proper as a search incident to an arrest, and even if the
defendant was not under arrest, the “evanescent nature of
alcohol in the blood” supported the extraction. Strong, 231 Ga.
at 518, 202 S.E.2d 428. As to the second ground, we concluded
that extracting blood did not cause the defendant to be a witness
against himself under the Fifth Amendment and “similar provisions of Georgia law,” approvingly citing cases to the effect
that the removal of evidence from a defendant’s body does not
implicate his right against compelled self-incrimination. Id. at
519, 202 S.E.2d 428. The holding as to the first ground is not
good law, as these more recent decisions have explained. Nothing
we say here should be understood as casting any doubt on
Strong’s self-incrimination holding.
App.23a
771 S.E.2d 373. 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, 771 S.E.2d 373. We remanded the case
for a determination of the voluntariness of the defendant’s consent because merely submitting to a stateadministered test after having been read the implied
consent notice did not per se establish voluntary consent for constitutional purposes. Id. at 821-823, 771
S.E.2d 373.
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), 533 S.E.2d
92. 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.
App.24a
(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 to the United States
Constitution 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,
771 S.E.2d 373. 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, 771 S.E.2d 373.
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 ___,
136 S.Ct. at 2184-2185 (V)(C)(3). 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
App.25a
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
3 We have said that because Paragraph XIII contains the same
language as the Fourth Amendment, it “is [to be] applied in
accord with the Fourth Amendment.” See Williams, 296 Ga. at
818 n.5, 771 S.E.2d 373. But interpreting Paragraph XIII in a
manner consistent with the Fourth Amendment does not mean
that our interpretation of Paragraph XIII must change every time
the Supreme Court of the United States changes its interpretation
of the Fourth Amendment. “Questions of the construction of the
State Constitution are strictly matters for the highest court of
this state. The construction of similar federal constitutional
provisions, though persuasive authority, is not binding on this
state’s construction of its own Constitution.” Pope v. City of Atlanta,
240 Ga. 177, 178 (1), 240 S.E.2d 241 (1977). State constitutional
provisions may, of course, confer greater protections than their
federal counterparts, provided that such broader scope is rooted
in the language, history, and context of the state provision. See
Grady v. United Govt. of Athens-Clark Cty., 289 Ga. 726, 731
(2)(b), 715 S.E.2d 148 (2011). In the same way, a state constitution may also offer less rights than federal law, so long as it
does not affirmatively violate federal law. See Massachusetts v.
Upton, 466 U.S. 727, 738, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984)
(Stevens, J., concurring specially) (“The state’s law may prove
to be more protective than federal law. The state law also may
be less protective. In that case, the court must go on to decide
the claim under federal law, assuming it has been raised.”
(citation and punctuation omitted)); Malyon v. Pierce County,
131 Wash.2d 779, 935 P.2d 1272, 1281 n. 30 (1997) (noting
“that the level of protection of rights under the state constitutions can be the same as, higher than, or lower than that provided by the federal constitution” (citation and punctuation
App.26a
(c) Paragraph XVI, Properly
Applies to Breath Tests
Understood,
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” (punctuation omitted)). 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
omitted)). Real federalism means that state constitutions are
not mere shadows cast by their federal counterparts, always subject
to change at the hand of a federal court’s new interpretation of
the federal constitution. See State v. Kennedy, 295 Or. 260, 666
P.2d 1316, 1323 (1983) (state constitutional rights were “meant
to be and remain genuine guarantees against misuse of the
state’s governmental powers, truly independent of the rising and
falling tides of federal case law both in method and in specifics”).
App.27a
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
L.Ed. 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. 1005,
83 L.Ed.2d 1016 (1985)).
App.28a
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” (citation and punctuation omitted)).
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 1983 Constitution, Justice Gregory
App.29a
acknowledged in a concurrence that this well-established principle precluded his preferred interpretation
of constitutional text:
[R]egardless of the interpretation we might
now place on these words, it is clear that our
courts have in the past given them the
meaning the majority opinion now gives
them. It is this interpretation of these words
which was incorporated into the Constitution of 1945. A constitutional provision is to
be construed in the sense in which it was
understood by the framers and the people at
the time of its adoption. Where the language
in our [C]onstitution does not indicate an
intention to declare some new principle, sound
construction requires that it be construed to
have intended no more than merely to state
the law as it existed at that time. The interpretation we might give these words today
is unimportant. Only that interpretation incorporated into the Constitution concerns
us in this particular case.
McCafferty v. Med. Coll. of Ga., 249 Ga. 62, 70, 287
S.E.2d 171 (1982) (Gregory, J., concurring specially)
(citations omitted), overruled on other grounds by
Self v. City of Atlanta, 259 Ga. 78, 79 (1), 377 S.E.2d
674 (1989) (adopting special concurrence). See also
Griffin v. Vandegriff, 205 Ga. 288, 291 (1), 53 S.E.2d
345 (1949); Scalia & Garner, Reading Law: The
Interpretation of Legal Texts 322-326 (West 2012)
(explaining the prior-construction canon that if a provision is enacted with words or phrases that had previously received authoritative construction by a jurisdiction’s court of last resort, the words and phrases
App.30a
are to be understood according to that construction).
Indeed, we have even previously applied this principle
to the self-incrimination provision of the 1945 Constitution. Because many “decisions of this [C]ourt had construed the word ‘testimony’ to embrace any evidence”
even before “the identical clause containing this word
was written into the 1945 Constitution,” we concluded
that “the framers of that Constitution intended for it
to have the meaning theretofore given it by construction.” Aldrich v. State, 220 Ga. 132, 135, 137 S.E.2d
463 (1964).
When we consider the original public meaning, we
necessarily must focus on objective indicators of meaning, not the subjective intent of particular individuals
that the language mean something idiosyncratic. The
importance of this objective approach is plain when
we consider our similar focus in statutory construction.
When we consider the meaning of statutes enacted
by 236 members of the General Assembly, we determine meaning from text and context, “not the subjective statements of individual legislators.” Gibson v.
Gibson, 301 Ga. 622, 632 (3)(c), 801 S.E.2d 40 (2017)
(quoting Malphurs v. State, 336 Ga. App. 867, 871-872,
785 S.E.2d 414 (2016)). This focus on the objective
meaning of statutory text is by necessity, for how can
we possibly determine the subjective intent of 236
legislators (and a governor) by any method other
than focusing on the text they enacted? Indeed,
how, putting aside the text, are we to figure
out what “intention” was in the head of the
legislators when they voted? And are we
searching for the intention of the entire
legislature? A majority of the members who
voted? Just the key members or sponsors of
App.31a
the bill or others who spoke or wrote about
the bill at some point before (or after) passage,
in some way that was publicly reported?
What if no majority of members voted on it
with the same intention? And what of the
intention of the Governor who signed the bill?
Merritt v. State, 286 Ga. 650, 656-657, 690 S.E.2d 835
(2010) (Nahmias, J., concurring specially). Determining
the “intent” of the legislature by means other than
considering the text and context of properly enacted
statutes would be futile.4
Our objective focus is even more important when
we interpret the Constitution. Unlike ordinary legislation, the people—not merely elected legislators—are
the “makers” of the Georgia Constitution. See Ga.
Const. of 1983, Art. X, Sec. I, Par. II (proposals to
amend or replace constitution require a vote of the
people); see also Wheeler v. Bd. of Trs. of Fargo Consolidated School Dist., 200 Ga. 323, 333 (3), 37
S.E.2d 322 (1946) (“The fiat of the people, and only
the fiat of the people, can breathe life into a constitution.”). If the subjective intent of one legislator out of
236 casts little light on the meaning of ordinary
legislation, such subjective views can hardly carry
more weight for a Constitution that had hundreds of
thousands of citizens who voted on its ratification.
See Ga. L. 1983, p. 2070 (1983 Constitution ratified
with 567,663 yes votes and 211,342 no votes). That
4 Or worse, it would be an invitation for judges “to read their
own policy preferences into the law, as we all believe that our
own policy views are wise and reasonable, which tempts us to
assume, consciously or unconsciously, that the legislature could
not have intended differently.” Merritt, 286 Ga. at 656, 690
S.E.2d 835 (Nahmias, J., concurring specially).
App.32a
said, considering what the framers of our Constitution
understood the words they selected to mean can be a
useful data point in determining what the words
meant to the public at large. See Gwinnett County
School Dist. v. Cox, 289 Ga. 265, 307-308, 710 S.E.2d
773 (2011) (Nahmias, J., dissenting) (“In construing
our Constitution, we . . . sometimes look to the understanding expressed by people directly involved in
drafting the document . . . The best evidence [of their
intent], of course, is not what various framers said to
each other at various points during the process, but
what they ultimately drafted together—the actual
Constitution that the citizens of Georgia then ratified.”).
(ii) Paragraph XVI Has a Nearly Unbroken
History of Application to Compelled
Acts, Not Merely Testimony
Applying these principles, we construe the right
against compelled self-incrimination preserved by
Paragraph XVI in the light of the meaning of Paragraph XVI’s materially identical ancestors. The right
against compelled self-incrimination achieved constitutional status in Georgia for the first time in the 1877
Constitution. Paragraph XVI provides that “[n]o person
shall be compelled to give testimony tending in any
manner to be self-incriminating”; the 1877 provision
provided that “[n]o person shall be compelled to give
testimony tending in any manner to criminate himself.”
Ga. Const. 1877, Art. I, Sec. I, Par. VI. Other than
replacing the archaic phrase “to criminate himself”5
5 At the time of the 1877 Constitution, the word “criminate”
was defined as “[t]o accuse or charge with a crime; to impeach.”
Noah Webster, A Dictionary of the English Language 98 (1878).
This is the same meaning that “incriminate” had at the time
App.33a
with the more modern phrase “to be self-incriminating,” Paragraph XVI is identical to the constitutional
provision adopted in 1877. A case we decided just two
years after the 1877 Constitution was adopted (and
have never since overruled) is thus critical to the
understanding of the scope of the right against compelled self-incrimination. In Day v. State, 63 Ga. 668,
669 (2) (1879), we held that this constitutional right
protected a defendant from being compelled to incriminate himself by acts, not merely testimony.
Although Day did not explain its broad interpretation,6 see id., several years later we more fully
explained the basis for such a broad scope. In Calhoun
v. State, 144 Ga. 679, 680-681, 87 S.E. 893 (1916), we
explained that the self-incrimination provision of the
1877 Georgia Constitution was modeled after the
common law principle that “no man is bound to accuse
himself of any crime or to furnish any evidence to
our 1983 Constitution was adopted. See Webster’s New World
Dictionary 713 (2d College ed. 1980) (defining “incriminate” as
“(1) to charge with a crime; accuse; (2) to involve in, or make
appear guilty of, a crime or fault”). Although usage of “criminate”
was common through the 19th century, the word has since
become merely an archaic variant of “incriminate.” See Bryan
A. Garner, A Dictionary of Modern American Usage 366 (1998).
And notes from the drafting of the 1983 Constitution also reflect
this understanding. See Select Committee on Constitutional
Revisions, 1977-1981, Transcript of Meetings, Committee to Revise
Article I, meeting of the Subcommittee on Origin and Structures
of Government, October 26, 1979, pp. 33-34.
6 There is no indication that “testimony” had a substantially
broader definition in 1877. See Noah Webster, A Dictionary of
the English Language 434 (1878) (defining “testify” as “[t]o make
a solemn declaration; to establish some fact; to give testimony”
and “[t]o witness to; to affirm or declare solemnly, or under oath”).
App.34a
convict himself of any crime[.]” Recognizing that the
constitutional guaranty against compelled self-incrimination was as broad as the common law right from
which it was derived, we noted that the right “protects
one from being compelled to furnish evidence against
himself, either in the form of oral confessions or
incriminating admissions of an involuntary character,
or of doing an act against his will which is incriminating in its nature.” Id. at 681, 87 S.E. 893.
The self-incrimination provision has been carried
forward with no material change from the 1877 Constitution through several intervening constitutions to
our current 1983 Constitution. See Ga. Const. 1945,
Art. I, Sec. I, Par. VI (“No person shall be compelled
to give testimony tending in any manner to criminate
himself.”); Ga. Const. 1976, Art. I, Sec. I, Par. XIII
(same); Ga. Const. 1983, Art. I, Sec. I, Par. XVI (“No
person shall be compelled to give testimony tending
in any manner to be self-incriminating.”). At no point
through this history was the constitutional language
changed to abrogate Day’s interpretation, nor did we
reconsider Day. To the contrary, we have consistently
and repeatedly applied the state constitutional protection against compelled self-incrimination in accord
with Day. See, e.g., Brown v. State, 262 Ga. 833, 836
(10), 426 S.E.2d 559 (1993) (1983 Constitution); Raines
v. White, 248 Ga. 406, 284 S.E.2d 7 (1981) (1976
Constitution); Aldrich, 220 Ga. at 135, 137 S.E.2d
463 (1945 Constitution); Blackwell v. State, 67 Ga.
76, 78-79 (1) (1881) (1877 Constitution). Thus, although Paragraph XVI refers only to testimony, its
protection against compelled self-incrimination was
long ago construed to also cover incriminating acts
and, thus, is more extensive than the Supreme Court
App.35a
of the United States’s interpretation of the right against
compelled self-incrimination guaranteed by the Fifth
Amendment.
Notwithstanding this well-aged precedent recognizing that the state right against compelled selfincrimination applies beyond mere testimony, the
State argues that we should construe Paragraph XVI
according to its plain text and limit the right to only
what is commonly understood today to be “testimony,”
i.e., spoken or written statements of certain kinds.
The State argues that we erred in Day by ignoring the
plain language of the constitutional provision and cites
legislative history surrounding the creation of the 1877
Constitution as evidence that the framers of that constitution intended for the right against self-incrimination to be limited to testimony.7
But even if the State were right that Day (and
all the other cases that have since followed it) misread
the constitutional text, we are no longer governed by
the 1877 Constitution that Day interpreted. Since
issuing our decisions in Day (1879) and Calhoun (1916),
the people of Georgia have adopted three new constitutions (1945, 1976, and 1983). Our current constitution adopted in 1983 contains self-incrimination language that is identical in all material respects to the
language interpreted in Day and Calhoun. Thus, even
7 In its well-researched briefing, the State points us to comments
made by John Matthews Guerard, a delegate to the 1877 Constitutional Convention, in proposing the self-incrimination provision.
The State focuses particularly on Guerard’s statement that the
provision would ensure that, at trial, a citizen “shall not be compelled to testify to anything tending to criminate himself.” Because
Guerard used the term “testify,” the State argues, he meant for
the self-incrimination provision to apply only to testimony.
App.36a
if we were wrong in Day and Calhoun to extend the
right against compelled self-incrimination beyond
spoken and written statements, the subsequent ratifications of new constitutions with the same language
are strongly presumed to have carried forward the
interpretation of that language provided by Day and
Calhoun. See Aldrich, 220 Ga. at 135, 137 S.E.2d 463
(framers of 1945 Constitution intended for constitutional privilege against self-incrimination to have
same meaning as that given by our construction in
Day, Calhoun, and other cases). As we explained above,
the adoption of a new constitution containing materially identical language already clearly and authoritatively construed by this Court is strongly presumed to have brought with that language our previous interpretation. This is so regardless of whether
those holdings were well-reasoned at the time they were
decided. The people of Georgia, by ratifying that constitutional text, ratified the scope of Paragraph XVI
as Day explained it.
(iii) Breathing Deep Lung Air Into a Breathalyzer Is a Self-Incriminating Act That
Paragraph XVI Prevents the State From
Compelling
Although the scope of our right against compelled
self-incrimination extends to acts, it is only compelled
acts of the defendant that fall within the protections
of Paragraph XVI. For example, we have held that a
defendant’s right against compelled self-incrimination
was violated when he was compelled to place his foot
in certain footprints located near the crime scene.
Day, 63 Ga. at 668-669 (2). We also have held that a
defendant’s right against compelled self-incrimination
was violated when he was required to stand up at trial
App.37a
so that a witness could verify that the defendant’s leg
had been amputated in a way that corresponded to
tracks left at the crime scene. Blackwell, 67 Ga. at
78-79 (1). We have concluded that a defendant’s right
against compelled self-incrimination was violated when
he was required to drive his truck onto scales in
order to determine whether he was operating a vehicle
weighing more than permitted by law. Aldrich, 220
Ga. at 135, 137 S.E.2d 463. We have also ruled that
requiring a defendant to produce a handwriting exemplar violates the self-incrimination provision. Brown,
262 Ga. at 836 (10), 426 S.E.2d 559 (1993); see also
State v. Armstead, 152 Ga. App. 56, 57 (2), 262 S.E.2d
233 (1979) (same).8
In contrast, the right against compelled self-incrimination is not violated where a defendant is compelled
only to be present so that certain incriminating evidence may be procured from him. Batton v. State, 260
Ga. 127, 130 (3), 391 S.E.2d 914 (1990).9 Consequently, we have ruled that the right is not violated by
removing clothing from a defendant. See, e.g., id.
(taking shoes from defendant); Drake v. State, 75 Ga.
8 Given our conclusion in Brown that compelling a defendant to
provide a handwriting exemplar violates the defendant’s right
against self-incrimination under the Georgia Constitution, the
Court of Appeals’s earlier decision in Davis v. State, 158 Ga.
App. 549, 552 (5), 281 S.E.2d 305 (1981), that compelled voice
exemplars do not violate that right seems something of an
outlier. But the continued validity of Davis is not before us today.
9 It is important to recognize that while these situations do not
implicate the right against compelled self-incrimination, the
taking of physical evidence from a suspect often will constitute
a search under the Fourth Amendment and Paragraph XIII, for
which a warrant or an exception to the warrant requirement,
such as consent or search incident to arrest, is required.
App.38a
413, 414-415 (2) (1885) (taking blood-stained clothes
from defendant); Franklin v. State, 69 Ga. 36, 43-44 (3)
(1882) (pulling boots off a defendant). Similarly, the
right is not violated when evidence is taken from a
defendant’s body or photographs of the defendant are
taken. See, e.g., Quarterman v. State, 282 Ga. 383, 386
(4), 651 S.E.2d 32 (2007) (statutory requirement that
convicted felon provide DNA sample did not violate
his right against compelled self-incrimination because
it does not force the convicted felon to remove
incriminating DNA evidence from his body himself
but only to submit to having the evidence removed);
Ingram v. State, 253 Ga. 622, 634 (7), 323 S.E.2d 801
(1984) (right was not violated by requiring defendant
to strip to the waist to allow police to photograph
tattoos on his body); State v. Thornton, 253 Ga. 524,
525 (2), 322 S.E.2d 711 (1984) (taking impression of
defendant’s teeth did not compel defendant to perform an act); Strong, 231 Ga. at 519, 202 S.E.2d 428
(withdrawal of blood from unconscious defendant did
not violate right); Creamer v. State, 229 Ga. 511,
517-518 (3), 192 S.E.2d 350 (1972) (right not violated
where defendant required to undergo surgery to remove
a bullet from his body because the defendant was not
forced to remove the bullet himself).
In other instances, even if the right was implicated, we concluded that no violation had occurred
where the defendant consented to the act rather than
being compelled. See, e.g., Scott v. State, 274 Ga. 476,
478 (2) (b), 554 S.E.2d 488 (2001) (accused’s right
against compelled self-incrimination was not violated
when he agreed to hold up sleeve to allow police to
photograph tattoos on his arm); Whippler v. State, 218
Ga. 198, 203 (6), 126 S.E.2d 744 (1962) (defendant’s
App.39a
right against compelled self-incrimination not violated
where he voluntarily and without objection cooperated
in giving fingerprints to police); Foster v. State, 213
Ga. 601, 604 (3), 100 S.E.2d 426 (1957) (suspect’s right
was not violated when he agreed to go with police to
the crime scene for identification purposes); see also
State v. J.T., 155 Ga. App. 812, 273 S.E.2d 214 (1980)
(student complied with assistant principal’s instruction to “empty her pockets”).
In sum, Paragraph XVI prohibits compelling a
suspect to perform an act that itself generates incriminating evidence; it does not prohibit compelling a
suspect to be present so that another person may
perform an act generating such evidence. See Creamer,
229 Ga. at 517 (3), 192 S.E.2d 350 (“You cannot force
a defendant to act, but you can, under proper circumstances, produce evidence from his person.”). And,
like other constitutional rights, a suspect may consent
to take actions that Paragraph XVI would prevent
the State from compelling. Having set forth the scope
of Georgia’s right against compelled self-incrimination,
we now consider whether Klink was correct to hold
that compelling a suspect to submit to a breath test
does not violate that right. The answer to this question
depends on the details of the test.
The police officer who administered the test in this
case testified that a proper breath test requires deep
lung breath, and that a suspect has to “blow sufficient volume to get the deep, inner-lung breath” to
provide a sufficient sample for testing. Deep lung or
alveolar air provides the most reliable sample because
it is in the alveolar region of the lungs where “alcohol
vapor and other gases are exchanged between blood
and breath.” Birchfield, ___ U.S. at ___, 136 S.Ct.
App.40a
2160. As the Supreme Court of the United States has
recognized, obtaining this deep lung breath requires
the cooperation of the person being tested because a
suspect must blow deeply into a breathalyzer for several seconds in order to produce an adequate sample.
See id. As the State conceded at oral argument,
merely breathing normally is not sufficient.
The State argues that no compelled act is involved
because a breath test only captures a “substance”
naturally excreted by the human body, in the same
way that collecting a urine sample does not violate a
defendant’s right against compelled self-incrimination.
See Green, 260 Ga. at 627 (2), 398 S.E.2d 360; see
also Robinson v. State, 180 Ga. App. 43, 50-51 (3),
348 S.E.2d 662), reversed on other grounds by Robinson
v. State, 256 Ga. 564, 350 S.E.2d 464 (1986) (concluding
that “procurement” of defendant’s urine did not violate
the defendant’s right because there was no evidence
that he was “forced” to produce the urine sample).
But Green and Robinson do not apply here.10 Although
a person generally expels breath from his body involuntarily and automatically, the State is not merely
collecting breath expelled in a natural manner. For a
breath test, deep lung breath is required.
It is true that “all the air that is breathed into a
breath analyzing machine, including deep lung air,
sooner or later would be exhaled even without the
test.” Birchfield, ___ U.S. at ___, 136 S.Ct. at 2177 (V)
(B)(1). If the State sought to capture and test a person’s
naturally exhaled breath, this might well be a different
case. But this is not how a breath test is performed.
10 Given their inapplicability, we do not consider whether Green
and Robinson were rightly decided.
App.41a
Sustained strong blowing into a machine for several
seconds requires a suspect to breathe unnaturally for
the purpose of generating evidence against himself.
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. See Birchfield, ___ U.S. at ___, 136 S.Ct. at 2168 (I) (“Measurement of BAC based on a breath test requires the
cooperation of the person being tested.”). Compelling
a defendant to perform an act that is incriminating
in nature is precisely what Paragraph XVI prohibits.
Calhoun, 144 Ga. at 681, 87 S.E. at 893 (the right
against compelled self-incrimination protects one from
“doing an act against his will which is incriminating
in its nature”).
To the extent we said otherwise in Klink, we did
so with no analysis. With a mere citation to Green’s
“natural excretion” principle, we summarily concluded
in Klink that “compelling a defendant to submit to
breath testing [is not] unconstitutional under Georgia
law.” Klink, 272 Ga. at 606 (1), 533 S.E.2d 92. As discussed above, Green cannot support a conclusion that
the forced and unnatural breathing required here does
not implicate a person’s right against compelled selfincrimination. Klink’s reasoning, therefore, is unsound.
But because Klink is still binding precedent, we
must decide whether the doctrine of stare decisis
nevertheless counsels against overruling Klink.
(iv) We Overrule Klink
Under the doctrine of stare decisis, courts generally
stand by their prior decisions, because “it promotes
the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial
App.42a
decisions, and contributes to the actual and perceived
integrity of the judicial process.” State v. Hudson,
293 Ga. 656, 661, 748 S.E.2d 910 (2013) (citation
omitted). Stare decisis, however, is not an “inexorable
command.” Id. “Courts, like individuals, but with more
caution and deliberation, must sometimes reconsider
what has been already carefully considered, and
rectify their own mistakes.” City of Atlanta v. First
Presbyterian Church, 86 Ga. 730, 733, 13 S.E. 252
(1891). In reconsidering our prior decisions, we must
balance “the importance of having the question decided
against the importance of having it decided right.”
State v. Jackson, 287 Ga. 646, 658 (5), 697 S.E.2d
757 (2010) (emphasis in original). To that end, we
have developed a test that considers “the age of precedent, the reliance interests at stake, the workability
of the decision, and, most importantly, the soundness
of its reasoning.” Id. The soundness of a precedent’s
reasoning is the most important factor. Id.
We have also said that stare decisis carries less
weight when our prior precedent involved the interpretation of the Constitution, which is more difficult
than statutory interpretation for the legislative process
to correct. See Ga. Dept. of Natural Resources v. Center
for a Sustainable Coast, Inc., 294 Ga. 593, 601 (2), 755
S.E.2d 184 (2014). This doesn’t mean that we disregard
stare decisis altogether, though; what it actually means
is that the first stare decisis factor (soundness of reasoning) becomes even more critical. The more wrong a prior
precedent got the Constitution, the less room there is
for the other factors to preserve it.
The stare decisis factors counsel that we overrule
Klink. We already have established that the reasoning
of Klink was unsound, cutting heavily in favor of over-
App.43a
ruling it. On the second factor, Klink was decided 17
years ago, and we have overruled decisions older than
that. See, e.g., Woodard v. State, 296 Ga. 803, 808-814,
771 S.E.2d 362 (2015) (overruling 24-year-old interpretation of justification defense statute); Sustainable
Coast, 294 Ga. at 601-602 (2), 755 S.E.2d 184 (reversing
19-year-old decision on sovereign immunity); Jackson,
287 Ga. at 659-60 (5), (6), 697 S.E.2d 757 (overruling
nearly 29-year-old interpretation of felony murder
statute).
Klink also does not involve substantial reliance
interests. Substantial reliance interests are an important consideration for precedents involving contract
and property rights, “where parties may have acted
in conformance with existing legal rules in order to
conduct transactions.” Citizens United v. Fed. Election
Comm’n, 558 U.S. 310, 365, 130 S.Ct. 876, 175 L.Ed.2d
753 (2010); see also Savage v. State, 297 Ga. 627, 641
(5)(b), 774 S.E.2d 624 (2015) (substantial reliance interests are most common in contract and property cases).
To be sure, the State has some sort of interest in preserving Klink so that pending DUI cases are not disturbed. And in the wake of Williams and Birchfield,
police officers may have relied on Klink to ask more
drivers to submit to breath tests as opposed to blood
tests, believing that compelled breath tests are unprotected by the State Constitution. But these sorts of
reliance interests do not
outweigh the countervailing interest that all
individuals share in having their constitutional rights fully protected. If it is clear that a
practice is unlawful, individuals’ interest in
its discontinuance clearly outweighs any law
enforcement entitlement to its persistence.
App.44a
“The mere fact that law enforcement may be
made more efficient can never by itself justify
disregard of [constitutional rights]”.
Gant, 556 U.S. at 349-350, 129 S.Ct. 1710 (quoting
Mincey v. Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408,
57 L.Ed.2d 290 (1978) (punctuation omitted)).
The remaining factor of workability is not reason
enough to preserve Klink. Under Klink, compelled
breath tests are permitted regardless of how coercively
cooperation may have been obtained. By rejecting
Klink, law enforcement may have to consider whether
a suspect has validly waived his right against selfincrimination under the totality of the circumstances.
We recognize that requiring this determination before
administering a breath test is more difficult than
simply waiting for an affirmative response after
reading the implied consent notice. But this difficulty
is not reason enough to persist in Klink’s constitutional
error.
Accordingly, 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.11 We next must decide
whether Olevik’s claims prevail under the applicable
law.
11 See, e.g., Sauls v. State, 293 Ga. 165, 167, 744 S.E.2d 735 (2013);
Cooper, 277 Ga. at 290 (V), 587 S.E.2d 605 (2003); Lutz v. State,
274 Ga. 71, 73 (1), 548 S.E.2d 323 (2001); Fantasia v. State, 268
Ga. 512, 514 (2), 491 S.E.2d 318 (1997); Oliver v. State, 268 Ga.
App. 290, 294 (2), 601 S.E.2d 774 (2004); State v. Coe, 243 Ga.
App. 232, 234 (2), 533 S.E.2d 104 (2000); State v. Lord, 236 Ga.
App. 868, 870, 513 S.E.2d 25 (1999); Nawrocki v. State, 235 Ga.
App. 416, 417 (1), 510 S.E.2d 301 (1998).
App.45a
3.
We Reject Olevik’s Facial and “As-Applied”
Challenges to the Implied Consent Notice
Olevik raises several challenges to OCGA § 40-567.1(b) in claiming that he did not validly consent to
the breath test. First, he argues that the statute is
unconstitutionally coercive, both on its face and as
applied, in violation of the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution
and Paragraph XIII of the Georgia Constitution,
because it is materially misleading and did not adequately inform him of his rights. Olevik also raises
what he describes as an as-applied challenge to the
implied consent notice statute, claiming that the
notice language coerced him to submit to a breath test
in violation of Paragraph XVI; this claim isn’t really
a challenge to the statute itself, but is instead merely
a claim that his breath test results are inadmissible.
We reject Olevik’s facial challenges because the statute
is not per se coercive. We reject his as-applied claim
because he offers no basis for a finding of coercion
beyond the language of the notice.
(a) Olevik’s Facial Challenges Fail
Olevik’s argument that OCGA § 40-5-67.1(b) is
facially coercive is essentially a claim that the implied
consent notice is so misleading and inaccurate that no
person can validly consent to a state-administered test
once the notice has been read. Outside the First Amendment context, a plaintiff faces a difficult task in mounting a successful facial challenge to a statute, “because
it requires one to establish that no set of circumstances
exists under which the statute would be valid, i.e., that
the law is unconstitutional in all of its applications,
or at least that the statute lacks a plainly legitimate
App.46a
sweep.” Bello v. State, 300 Ga. 682, 686 (1), 797 S.E.2d
882 (2017) (punctuation and citation omitted); see also
Blevins v. Dade Cty. Bd. of Tax Assessors, 288 Ga. 113,
118 (3), 702 S.E.2d 145 (2010). Where a statute has a
“plainly legitimate sweep,” a facial challenge must fail.
See Washington State Grange v. Washington State
Republican Party, 552 U.S. 442, 449, 128 S.Ct. 1184,
170 L.Ed.2d 151 (2008). Olevik has failed to satisfy
this exacting standard.
(i) The Implied Consent Notice Is Not Per
Se Coercive on Its Face
Olevik argues that the misleading language of the
implied consent notice violates the due process guarantees of the United States and Georgia Constitutions.12
Specifically, Olevik argues that the implied consent
notice inaccurately tells suspects that Georgia law
requires them to submit to a state-administered chemical test and provides misleading information about
the consequences for submitting or refusing to submit
to a test.
Before addressing Olevik’s specific arguments, we
note that the implied consent statute has a “plainly
legitimate sweep,” practically dooming Olevik’s facial
challenge. All 50 states have adopted some form of an
implied consent law that requires “motorists, as a
condition of operating a motor vehicle within the
State, to consent to BAC testing if they are arrested
or otherwise detained on suspicion of a drunk-driving
12 Although Olevik cites both federal and state constitutional
due process provisions, he does not argue that they offer different
protections or that his claims are to be analyzed differently in
this context.
App.47a
offense.” Birchfield, ___ U.S. at ___, 136 S.Ct. at 2169
(I) (quoting Missouri v. McNeely, 569 U.S. 141, 161,
133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (punctuation
omitted)). The Supreme Court of the United States
has approved the “general concept of implied-consent
laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply.” Id. at
___, 136 S.Ct. at 2185 (VI). The Birchfield Court,
however, struck down implied consent laws that
impose criminal penalties for refusing to submit to
blood testing. Id. at ___, 136 S.Ct. at 2184-2185 (V)
(C)(3). Georgia’s implied consent statute does not
impose criminal penalties for refusing to submit to
chemical testing, squarely putting our implied consent
notice within the category of statutes that the Supreme
Court of the United States has deemed not unconstitutionally coercive.
Aside from failing to show a lack of a legitimate
sweep, Olevik has failed to demonstrate that the
implied consent notice is unconstitutional in all of its
applications. “In determining whether a defendant’s
statement was voluntary as a matter of constitutional
due process, a trial court must consider the totality of
the circumstances.” Welbon v. State, 301 Ga. 106, 109
(2), 799 S.E.2d 793 (2017); see also State v. Chulpayev, 296 Ga. 764, 779 (3)(b), 770 S.E.2d 808 (2015)
(violation of a statute rendering a confession inadmissible does not automatically amount to a constitutional
violation). As we explain below in Division 3 (b), the
totality of the circumstances test to determine the
voluntariness of an incriminating statement or act
for due process purposes is the same test used to
determine the voluntariness of a consent to chemical
testing in the DUI context. After our decision in
App.48a
Williams, mere acquiescence to a blood test after
being read the implied consent notice is not per se
voluntary consent to a warrantless search; the State
must show that a suspect voluntarily consented to a
blood test under the totality of the circumstances.
Williams, 296 Ga. at 822-823, 771 S.E.2d 373.
Because evaluating whether self-incrimination was
compelled depends on the totality of the circumstances,
Olevik cannot establish that the implied consent notice
is materially misleading and substantively inaccurate
in every application such that the notice invariably
compels submission to the requested breath test. For
example, Olevik argues that the implied consent notice
misinforms a defendant that he is required to submit
to a state-administered chemical test without informing
suspects about their right to refuse testing. By its plain
terms, the first sentence of the notice (“Georgia law
requires you to submit to state administered chemical
tests”) tells a suspect that Georgia law requires him
to take a chemical test of his blood, breath, urine, or
other bodily substance. This warning is, of course, true
in the sense that the implied consent law has provided
that drivers have agreed to submit to chemical tests
as a condition of having a driver’s license. If you don’t
submit to a test, you lose your license.
The implied consent notice also refers to the testing as “required” twice more. See OCGA § 40-5-67.1
(b)(2). Olevik would have us accept that every suspect
would focus only on the notice’s repeated references
to “required” testing at the exclusion of other language contained in the notice. But following the first
instruction that “Georgia law requires you to submit
to state administered chemical tests,” the notice
states, “If you refuse this testing, your Georgia driver’s
App.49a
license or privilege to drive . . . will be suspended for
a minimum period of one year.” The next sentence
begins “Your refusal to submit to the required testing
may be offered into evidence against you at trial.”
After giving other information, the notice ends with,
“Will you submit to the state administered chemical
tests of your (designate which tests) under the implied
consent law?” Because the notice refers to a right to
refuse, advises suspects of the consequences for doing
so, and concludes with a request to submit to testing,
a reasonable suspect relying solely on the notice
should understand that the State is asking for a
suspect’s cooperation, rather than demanding it, and
that they have a right to refuse to cooperate.
Olevik next asserts that the notice is per se coercive because it contains misleading information about
the consequences of taking a chemical test or refusing
to do so. Specifically, Olevik observes that the notice
warns suspects that a refusal to submit to testing
will result in a license suspension and that a test
result indicating a BAC of 0.08 grams or more only
may result in a suspension. Olevik is correct that
this information is not entirely accurate, as suspensions are mandated in either case. See OCGA § 40-567.1(c) (providing that the Department of Public
Safety “shall suspend” the license of a driver (21 or
older) who has an alcohol concentration of 0.08 grams
or more), (d) (the department “shall suspend” for a
period of one year the license of a person who refuses
to submit to a chemical test). But the mere fact that the
notice misstates the likelihood of a license suspension
does not, by itself, render the notice per se coercive
regardless of other circumstances. We cannot say that
the notice’s use of “may” instead of “shall” with respect
App.50a
to the likelihood of license suspension is likely to play
a dispositive role in a reasonable person’s decision;
when arrested and facing jail, the relative likelihood
of also facing a civil administrative penalty may well
recede into the background.
Olevik also challenges OCGA § 40-5-67.1(b)’s failure to advise suspects that the test results will be
used against him at trial. But he concedes that the
primary purpose of seeking the test is to collect evidence to support a criminal prosecution. Olevik points
to no law requiring a full and explicit explanation of
all possible consequences no matter how obvious.13
The Supreme Court of the United States has rejected
the claim that the admission of evidence that a
defendant refused to take a chemical test violated a
defendant’s due process rights where he was not fully
warned of the consequences of refusal. See Neville,
459 U.S. at 564-566, 103 S.Ct. 916. In rejecting a
claim that an implied consent statute, similar to the
one at issue here, was coercive, the Neville Court
concluded that the statute did not create a situation
“so painful, dangerous, or severe, or so violative of
religious beliefs, that almost inevitably a person
would prefer ‘confession’” via submission to a chemical
test. Neville, 459 U.S. at 563, 103 S.Ct. 916.
Olevik’s facial claim rests on the premise that
the notice would deceive a reasonable person. On the
13 To the extent Olevik argues that we should impose a Mirandastyle prophylactic rule to protect suspects’ Paragraph XVI rights
(rights the scope of which, as we have explained, were well-established long before the Supreme Court’s decision in Miranda), he
does not point us to a single decision of this Court or any textual
or historical basis supporting such a step. In the absence of a
more complete argument, we decline to address this issue.
App.51a
record before us, although Olevik points out deficiencies
in the implied consent notice,14 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. Because we cannot assume that the implied
consent notice standing alone will coerce reasonable
people to whom it is read, Olevik’s facial challenge fails.
See Washington State Grange, 552 U.S. at 457, 128
S.Ct. 1184 (rejecting facial challenge to primary election
system initiative because each of the plaintiffs’ arguments “rests on factual assumptions about voter confusion, and each fails for the same reason: In the absence
of evidence, we cannot assume that Washington’s
voters will be misled”).
(b) Olevik’s “As-Applied” Self-Incrimination Claim
Also Fails
Olevik also raises an “as-applied” challenge to the
implied consent notice, arguing that the application of
the statute violated his due process rights. Regardless
of whether the reading of a notice compels a defendant
to incriminate himself, it is not the reading of the notice
that would constitute a due process violation or a violation of the right against compelled self-incrimination.
Instead, it is the admission of a compelled breath
test that would amount to a constitutional violation.
See Chavez v. Martinez, 538 U.S. 760, 767, 123 S.Ct.
1994, 155 L.Ed.2d 984 (2003) (“Statements compelled
by police interrogations of course may not be used
14 The General Assembly may wish to amend the implied consent
notice statute; if it does, among the changes it may consider
would be a clearer explication of the right to refuse testing, and a
more accurate articulation of the likelihood of license suspension.
App.52a
against a defendant at trial, but it is not until their use
in a criminal case that a violation of the Self-Incrimination Clause occurs.” (citation omitted; emphasis supplied)); Payne v. Arkansas, 356 U.S. 560, 561, 78 S.Ct.
844, 2 L.Ed.2d 975 (1958) (the use of a defendant’s
confession obtained by coercion, whether physical or
mental, violates due process). Accordingly, this claim
isn’t really a challenge to the statute, but is instead a
challenge to the admission of the results of the
breath test against him.
As stated above, whether a defendant is compelled
to provide self-incriminating evidence in violation of
Paragraph XVI is determined under the totality of
the circumstances. Determining the voluntariness of
(or lack of compulsion surrounding) a defendant’s
incriminating statement or act involves considerations
similar to those employed in determining whether a
defendant voluntarily consented to a search. See
Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct.
2041, 36 L.Ed.2d 854 (1973). We have said that the
voluntariness of a consent to search is determined by
such factors as
the age of the accused, his education, his
intelligence, the length of detention, whether
the accused was advised of his constitutional
rights, the prolonged nature of questioning,
the use of physical punishment, and the psychological impact of all these factors on the
accused. In determining voluntariness, no
single factor is controlling.
Dean v. State, 250 Ga. 77, 80 (2) (a), 295 S.E.2d 306
(1982); see also Schneckloth, 412 U.S. at 226, 93 S.Ct.
2041 (noting that in considering whether a defendant
voluntarily incriminated himself, the Court “determined
App.53a
the factual circumstances surrounding the confession,
assessed the psychological impact on the accused, and
evaluated the legal significance of how the accused
reacted”). Just as the voluntariness of consent to search
includes an assessment of the “psychological impact
of all the factors on a defendant,” a significant factor
in a due process inquiry is whether a deceptive police
practice caused a defendant to confess or provide an
incriminating statement. See United States v. Lall, 607
F.3d 1277, 1285 (11th Cir. 2010) (“While we look to the
totality of the circumstances to determine the voluntariness of [a defendant’s] confession, a significant aspect
of that inquiry here involves the effect of deception in
obtaining a confession.”); Chulpayev, 296 Ga. at 779
(3)(a), 770 S.E.2d 808 (citing Lall, 607 F.3d at 1285)).
And although “knowledge of the right to refuse consent
is one factor to be taken into account, the government
need not establish such knowledge as the sine qua
non of an effective consent.” State v. Tye, 276 Ga. 559,
560 (1), 580 S.E.2d 528 (2003) (citation and punctuation
omitted); see also Schneckloth, 412 U.S. at 227, 93 S.Ct.
2041 (“While the state of the accused’s mind, and the
failure of the police to advise the accused of his rights,
were certainly factors to be evaluated in assessing the
‘voluntariness’ of an accused’s responses, they were
not in and of themselves determinative.”).
This totality test is not foreign to trial courts.
Trial courts already use the test to determine the
voluntariness of a defendant’s consent to chemical
testing as an exception to the warrant requirement
under the Fourth Amendment and Paragraph XIII.
The trial court here in fact considered the totality of
the circumstances in concluding that Olevik consented
to the breath test under Fourth Amendment principles.
App.54a
Although the trial court erred in in concluding
that Olevik’s constitutional right against compelled
self-incrimination was not at issue, its ruling is
understandable; indeed, the outcome was required
by binding case law. See Ga. Const. of 1983, Art. VI,
Sec. VI, Par. VI (“The decisions of the Supreme Court
shall bind all other courts as precedents.”). But we
have now overturned that case law because it erred
in stating that breath tests do not implicate the right
against self-incrimination. Paragraph XVI protects
against compelled breath tests and affords individuals
a constitutional right to refuse testing.
Nevertheless, the trial court’s ultimate conclusion
that Olevik was not compelled into submitting to the
breath test must be affirmed. The court said it considered all the 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 only consideration that
Olevik argues the court failed to consider properly is
the allegedly coercive and misleading nature of the
implied consent notice. But we have already concluded
above in rejecting his facial challenge that the notice,
standing alone, is not per se coercive. Olevik identifies
no other factors surrounding his arrest that, in combination with the reading of the implied consent notice,
coerced him into performing a self-incriminating act.
Indeed, Olevik stipulated that the officer’s actions were
not threatening or intimidating. Because the reading
of the implied consent notice is not, by itself, coercive,
and Olevik has offered nothing else, Olevik’s claim
must fail. Accordingly, we affirm the trial court’s order
denying Olevik’s motion to suppress and affirm his
convictions.
App.55a
Judgment affirmed.
All the Justices concur.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.