Are Breath Tests Self-Incriminating?

In October 2017, the Georgia Supreme Court handed down a decision that could have widespread implications in Georgia DUI cases. The case, Olevik v. State, deals with the right against self-incrimination and whether the Georgia state constitution “prohibits law enforcement from compelling a person suspected of DUI to blow their deep lung air into a breathalyzer.”

In the underlying DUI case, the defendant – Frederick Olevik – was arrested on suspicion of driving while intoxicated. The police officer read the appropriate implied consent notice to Olevik and requested that he submit to a breath test in order to determine his blood alcohol content (BAC). Olevik consented and the test results “revealed that he had a BAC of 0.113.” He subsequently moved to suppress the results of this test, arguing that “his consent to the test was invalid because the language of the implied consent notice was misleading, coercing him to take the test in violation of his rights against self-incrimination.” The trial court judge denied his motion, “concluding that his right against compelled self-incrimination was not violated because he voluntarily consented to the breath test.” Olevik was later found guilty of DUI Less Safe as well as “failure to maintain a lane, and no brake lights.”

Olevik appealed his case all the way up to the state Supreme Court. The court considered several arguments including whether or not the state constitution provision, called Paragraph XVI, which gives the citizens of Georgia the right not to incriminate themselves. The provision states “[n]o person shall be compelled to give testimony tending in any manner to be self-incriminating.” While the traditional notion of self-incrimination deals with words, that is, that a person cannot be asked to communicate anything incriminating, the court stated that Georgia law goes further. In this state, the constitutional right against self-incrimination protects defendants “from being compelled to incriminate [themselves] by acts, not merely testimony.” The court further elaborated that “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 of the United States' interpretation of the right against compelled self-incrimination guaranteed by the Fifth Amendment.”

After concluding that the Georgia constitution protects people from incriminating themselves through both words and actions, the court turned to the issue of compelled breath tests. The court looked at what exactly a breath test required. In order to provide a proper breath sample, the subject has to “blow deeply into a breathalyzer for several seconds in order to produce an adequate sample.” Regular breathing is not enough. The court pointed out to get the required breath sample the defendant has to breathe a sustained and strong breath into the machine for several seconds. The court stated that to get a sample, “it is required that the defendant cooperate by performing an act.” The court reasoned that “[c]ompelling a defendant to perform an act that is incriminating in nature is precisely what Paragraph XVI prohibits.”

The court then looked at how the law applied in Olevik's case. Though he made several arguments concerning the implied consent notice he was read, the court did not find any of them compelling enough to overturn his conviction. The court concluded that “[a]lthough the trial court erred in in [sic] concluding that Olevik's constitutional right against compelled self-incrimination was not at issue,” the “trial court's ultimate decision that Olevik was not compelled into submitting to the breath test must be affirmed.” The Supreme Court reasoned that the trial court had “considered all relevant factors to determine the voluntariness to consent to search, and these same factors are used in determining whether an incriminating act or statement was voluntary.”

The court stated that though Olevik argued that the court didn't consider the “coercive and misleading nature of the implied consent notice,” it had concluded the notice was not per se coercive. Olevik had identified “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.” Since the court did not find the reading of the consent notice coercive by itself, the court concluded that his “claim must fail.” The court then affirmed the trial court's denial of his motion to suppress and affirmed his convictions.