Olevik v. State

Summary

The Georgia Supreme Court held that the Georgia Constitution’s protection against compelled self-incrimination applies to compelled acts that generate incriminating evidence, including submission to a breath test. The court overruled prior precedent to the extent it held otherwise, but upheld the implied consent notice statute against facial challenges because its language was not per se coercive. The court affirmed the conviction because the defendant presented no evidence beyond the statutory language to establish coercion under the totality of the circumstances.

Holdings

1. Article I, Section I, Paragraph XVI of the Georgia Constitution protects a suspect from being compelled to perform an act that itself generates incriminating evidence. Because a valid breath test requires sustained, strong blowing to produce deep-lung air, compelling that act implicates the state constitutional right against compelled self-incrimination.
2. Klink v. State is overruled to the extent it held that Paragraph XVI does not protect against compelled breath tests or that the right to refuse state-administered testing is merely a statutory right.
3. The implied-consent notice prescribed by OCGA § 40-5-67.1 (b) is not facially coercive or unconstitutional merely because it uses the word required, describes refusal and testing consequences imperfectly, or does not expressly state every consequence of testing.
4. Olevik failed to establish that his breath test was compelled under the totality of the circumstances because he relied only on the notice's language, which was not per se coercive, and stipulated that the officer was not threatening or intimidating.

Questions Presented

1. Whether the Georgia Constitution's protection against compelled self-incrimination applies to a suspect's compelled performance of a breath test requiring sustained deep-lung exhalation.
2. Whether Klink v. State and related precedent holding that breath testing does not implicate the Georgia constitutional right against compelled self-incrimination should be overruled.
3. Whether OCGA § 40-5-67.1 (b) is facially coercive or violates due process because of the language and alleged inaccuracies in Georgia's implied-consent notice.
4. Whether the circumstances surrounding Olevik's breath test established that he was actually compelled to provide incriminating evidence.

Disposition

affirmed