Georgia Supreme Court: Sobriety breath tests cannot be compelled

ATLANTA — In decisions Monday that impact law enforcement issues, the Georgia Supreme Court has overruled its previous decisions and determined that motorists suspected of DUI cannot be compelled to submit to sobriety breath tests.

The high court also confirmed that sheriffs have the authority to determine who can operate as private process servers in their respective counties.

In Monday’s unanimous opinion regarding breathalyzer tests in which a driver is asked to blow into a device to help determine sobriety, the justices overruled a number of its previous decisions in which the high court had ruled the state Constitution does not give an individual the right to refuse the field test.

The court, in an opinion written by Justice Nels S.D. Peterson, said Monday that Georgia’s Constitution protects individuals from compelled self-incrimination in their actions as well as their testimony.

Still, the defendant who appealed his Gwinnett County conviction for driving under the influence lost his appeal in which he challenged the language of the state statute as being unconstitutionally coercive.

Frederick Olevik appealed the conviction, which stemmed from a June 6, 2015, traffic stop, according to a summary from the Supreme Court. Police said he was stopped for failure to keep his auto in the traffic lane and for not having taillights. In addition to showing positive on the field breath test, officers noted that his eyes were bloodshot and watery, his speech was slow and he emitted a strong odor of alcohol. The officer explained the field test was not the same as the state-administered test.

When it appeared Olevik was going to faint, officers called in EMS and placed him in the back of their patrol car, where an officer read him Georgia’s implied consent notice that states refusal to submit to the state-administered test for determining whether a person is under the influence of alcohol or drugs carries with it the loss of a driver’s license for at least a year and that the refusal may be offered into evidence at trial. The notice also states a defendant can hire his own qualified expert to conduct the same test. Olevik agreed and submitted to the test, which showed a blood alcohol concentration of 0.113 grams, above the state’s 0.08-gram limit. He was charged with DUI less safe, DUI unlawful alcohol concentration, failure to maintain lane and no brake lights.

Olevik’s attorney filed a motion to suppress the results of the state-administered breath-alcohol test, challenging the constitutionality of Georgia’s implied consent notice. The trial court denied the motion to suppress and in September 2016, Olevik proceeded to a bench trial. He was convicted of all charges and sentenced to 24 hours in jail with credit for 24 hours time served, plus 12 months on probation, 40 hours of community service, a DUI risk reduction course and drug and alcohol substance abuse evaluation, and an $800 fine.

Olevik did not contest his convictions for failure to maintain lane and no brake lights. But he appealed to the state Supreme Court the trial court’s decision that the implied consent notice is not unconstitutionally coercive.

“The Georgia Constitution protects each of us from being forced to incriminate ourself,” Peterson’s said in the 49-page opinion. “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 their 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 [i.e. Olevik] still loses because the language of the implied consent notice statute he challenges is not per se coercive.”

In his appeal, Olevik argued that the misleading language of the implied consent notice statute compelled him to perform the test.

“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,” the opinion says. “We nevertheless reject Olevik’s facial challenges to the implied consent notice statute, because the language of that notice is not per se coercive.”

In the decision regarding sheriffs’ regulating process servers in their counties, the court also ruled unanimously in the sheriffs’ favor. The lawsuit was brought against them by the Georgia Association of Professional Process Servers.

In their dispute with sheriffs, the private process servers, whose job is to serve people with subpoenas and other legal documents, appealed a Fulton County court ruling that gives sheriffs the final say on whether to allow certified process servers to work in their counties. They argued the statute on which the sheriffs were relying was unconstitutional.

In the opinion written by Justice Michael P. Boggs, the Supreme Court upheld the trial court’s ruling that under Georgia Code sheriffs have “absolute discretion to permit or deny” certified process servers in their counties.

In 2013, the Georgia Association of Professional Process Servers sued the sheriffs of Fulton, DeKalb, Cobb, Gwinnett, Clayton, Forsyth and Paulding counties, contending that the sheriffs had “blatantly” and “unlawfully” banned them statewide from doing their jobs.

Both sides asked for summary judgment and in 2015 a trial court ruled in favor of the sheriffs, finding the association was not entitled to any of the relief sought. The association then appealed to the state Supreme Court.

“Here, a plain reading of the statute shows that each sheriff is authorized to decide, as a threshold matter, whether to ‘allow certified process servers to serve process in his or her county,’” the opinion says. “As the trial court correctly noted, that is a separate issue from the sheriff’s duty to process applications for certification” under Georgia Code.