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Georgia Supreme Court: Statutes Permitting a Defendant’s Refusal to Submit to Breath Tests to Be Admitted into Evidence Are Unconstitutional

by Douglas Ankney

The Supreme Court of Georgia held that OCGA §§ 40-5-67.1(b) and 40-6-392(d), to the extent that they allow a defendant’s refusal to submit to a breath test to be admitted as evidence, violate Article I, Section I, Paragraph XVI (“Paragraph XVI”) of the Georgia Constitution.

Andrea Elliott was arrested for DUI. The arresting officer read to her Georgia’s “implied consent warning” codified at OCGA § 40-5-67.1(b), which states, inter alia, that a refusal to submit to chemical tests of blood, breath, urine, or other bodily substances will result in suspension of the driver’s license for a minimum of one year and further states that evidence of the refusal may be offered as evidence at trial. Elliot refused to submit to a breath test and was taken to jail. She filed a motion to suppress evidence of her refusal to submit to a breath test, claiming introduction of the evidence at trial would violate her right against self-incrimination under Paragraph XVI of the Georgia Constitution. The trial court denied her motion, which lead to her appeal in the Georgia Supreme Court.

The Court follows three principles when interpreting provisions of the state Constitution. First, the Court interprets the Georgia Constitution according to its original public meaning. Olevik v. State, 806 S.E.2d 505 (Ga. 2017). Georgia has had 10 constitutions. The current iteration is the Constitution of 1983, but it has re-adopted provisions of earlier constitutions. The Court generally presumes that a constitutional provision re-adopted from a previous constitution without a material change has kept the original public meaning the provision had at the time it first entered a Georgia Constitution. Bibb County v. Hancock, 86 S.E.2d 511 (Ga. 1955).

The second principle is: “A constitutional clause that is readopted into a new constitution and that has received consistent and definitive construction is presumed to carry the same meaning as that consistent construction.” This principle has been long applied. McKnight v. City of Decatur, 37 S.E.2d 915 (Ga. 1946). In Olevik, the Court determined that Paragraph XVI had a consistent and definitive construction of words that had remained materially unchanged since the clause first appeared in the Constitution of 1877. 

The third principle is that while the Court may consider decisions of the Supreme Court of the United States (“SCOTUS”) interpreting similar provisions of the U.S. Constitution, the Georgia Supreme Court is the final arbiter of the state Constitution. Pope v. City of Atlanta, 240 S.E.2d 241 (Ga. 1977).

In Olevik, the Court examined whether Paragraph XVI’s provision that “[n]o person shall be compelled to give testimony tending in any manner to be self-incriminating” applied to chemical breath tests. In so doing, the Court reviewed an unbroken chain of precedent from Day v. State, 63 Ga. 668 (Ga. 1879), through Calhoun v. State, 87 S.E.2d 893 (Ga. 1916), and concluded that a breath test requires an accused to perform an incriminating act; therefore, Paragraph XVI prohibits the State from compelling the test. Around the time the provision was put into the Constitution of 1877, the public meaning of the word “testimony” included physical actions as well as words. Stokes v. State, 64 Tenn. 619 (Tenn. 1875). The protection against self-incrimination was defined by the courts of Georgia as forbidding a “man ... to accuse himself of any crime, or to furnish any evidence to convict himself of any crime.” Marshall v. Riley, 7 Ga. 370 (1849). The protections of Paragraph XVI are much broader in scope than those of the Fifth Amendment as interpreted by SCOTUS.

The Court was careful to distinguish breath tests from blood and urine tests. Breath tests require “action” of the accused by “forceful blowing.” Obtaining blood and urine requires only the passive presence of the accused.

The Court went on to determine that, since an accused cannot be compelled to submit to a breath test and has a right to refuse, the State cannot use evidence of the refusal for the fact-finder to draw adverse inferences. Bird v. State, 50 Ga. 585 (1874). The Court concluded that the provisions of OCGA §§ 40-5-67.1(b) and 40-6-392(d) that permit introduction of evidence of an accused’s refusal to submit to a breath test violates the protections of Paragraph XVI.

Accordingly, the Court reversed the trial court’s denial of the motion to suppress. See: Elliott v. State, 2019 Ga. LEXIS 112 (2019). 

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