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Georgia Supreme Court Rules Breathalyzer Tests Violate Georgia Privilege Against Self-Incrimination.

Wednesday, November 15, 2017 8:42 AM | Anonymous member (Administrator)

On October 16, 2017, the Georgia Supreme Court held in Olevik v. State that the privilege against self-incrimination found in Georgia's Constitution is more protective than the Federal Fifth Amendment privilege against the same.  The Georgia Constitution includes prohibitions against giving physical evidence and consequently that compelled breathalyzer tests violate the Georgia privilege against self-incrimination. The court interpreted Paragraph XVI of the Georgia Constitution ("No person shall be compelled to give testimony tending in any manner to be self-incriminating.") through a historical lens, saying that the paragraph in question is not coterminous with the scope of the Fifth Amendment, but must be interpreted in light of prior Georgia case law regarding similar language in earlier versions of the Georgia state constitution. The court cited a long line of judicial precedent back to 1879 interpreting the Georgia privilege against self-incrimination as applying to acts, not just verbal testimony. Under this interpretation, the court held that the act of asking the defendant to "breath[e] deep lung air into a breathalyzer," is providing evidence against himself, and violates Georgia's privilege against self-incrimination, overturning the Georgia Supreme Court's 2000 ruling in Klink v. State.   

However, the court rejected the defendant's facial and as-applied challenges to the state's implied consent statute.  The court rejected the facial challenge to the statute because it found that Georgia's implied consent statute is not per se coercive.  The court also rejected the as-applied challenge because it found no basis for a finding of coercion beyond the language of the police notice mandated by the statute. 

In light of these additional findings, Georgia breath test results are admissible--while refusals of a breath test may not be.  That issue was not before the court and will need to be litigated in a future case.   The consequence in Georgia is that more refusals are likely to arise, until the issue is decided. 

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