Is There a Georgia Supreme Court, Problem? Analyzing the Georgia Supreme Court's New Peculiar Approach Towards Breathalyzers and Implied Consent Law

• Publication year: 2020

Is There a Georgia Supreme Court, Problem? Analyzing the Georgia Supreme Court's New Peculiar Approach Towards Breathalyzers and Implied Consent Law

Brian Fussell Jr.

[Page 393]

Is There a Georgia Supreme Court, Problem? Analyzing the Georgia Supreme Court's New Peculiar Approach Towards Breathalyzers and Implied Consent Law*

I. Introduction

Alcohol and criminal behavior often accompany each other as anyone with any experience with the justice system (or intoxicated people in general) can attest to. A significant percentage of the population would probably say their worst decisions and mistakes came about while under the influence of booze or other intoxicants, and crime statistics would back this up.¹ Alcohol-related crime statistics in the United States compiled by AlcoRehab show around 500,000 cases of alcohol related violence every year and also demonstrate that an incredible 86% of homicides and 60% of sexual abuse or rape cases were committed under the influence of alcohol.²

Because of the common presence of alcohol in crime, for a great number of criminal prosecutions and civil lawsuits, a significant factor for the trier of fact to determine is whether the defendant was intoxicated or under the influence of alcohol at the time of his alleged crime or misdeed. In most states, law enforcement has sought to determine the amount of alcohol in a person's system through various

[Page 394]

tests of the person's breath, blood, or urine.³ In many jurisdictions, the purpose of such tests is to ascertain the ratio of alcohol to blood in a person's body because certain presumptions as to intoxication arise from certain alcohol to blood ratios. Although both blood and urine samples may be tested in order to determine the presence of alcohol in the blood of a suspect, and such tests are in fact conducted on occasion by the police, the use of air (or breath) samples has developed as the most common method of determining the amount of alcohol in a person's system.⁴ Breath tests are prevalent because they are less obstructive and unobtrusive when compared to other methods, and provide for immediate results. A person, simply by blowing or breathing into certain equipment, can provide a sample of the air in his body. Then an analysis of the air can be made and the findings can be correlated to an alcohol to blood ratio.⁵

One of the most common alcohol-related offenses is driving under the influence (DUI). Two recent decisions handed down by the Supreme Court of the United States and the Georgia Supreme Court covered the same area of law concerning constitutional rights and the scourge of drunk driving, and, not for the first time, the two courts came to opposite conclusions. What may surprise some scholars unfamiliar with DUI laws in Georgia is that the Georgia Supreme Court actually expanded constitutional protections concerning criminal rights while the Supreme Court of the United States did not.⁶ The constitutional right in question is the ancient and often thorny right governing self-incrimination by criminal defendants, memorialized in the Fifth Amendment to the United States Constitution⁷ and Article 1, Section 1, Paragraph XVI of the Georgia Constitution.⁸

[Page 395]

In Elliott v. State,⁹ the Georgia Supreme Court held that the admission of evidence consisting of a suspect's refusal to take a breathalyzer test while under the suspicion of driving under the influence violated the state constitution's prohibition against self-incrimination.¹⁰ The court in Elliott also further expanded the court's controversial ruling in Olevik v. State,¹¹ in which the court held that the right against self-incrimination applied to compelled breath tests and that a suspect's right to refuse such a test was a constitutional right. The decision in Olevik overruled decades of previous Georgia case law.¹² Conversely, in Mitchell v. Wisconsin,¹³ the Supreme Court of the United States upheld its previous rulings regarding this matter, stating that compelled blood alcohol content (BAC) tests do not violate a defendant's right against self-incrimination, and that a defendant's refusal to submit to a BAC test can be used as evidence against the defendant at trial.¹⁴

This Comment will compare and analyze Georgia law, federal law, and the law of other jurisdictions concerning their approaches to the admission of BAC tests and how such admissions relate to constitutional rights. This Comment will also consider what effect, if any, this type of law has on DUI statistics, crash statistics, and criminal prosecutions relating to alcohol. This Comment will also address the practicality of the Georgia ruling as it relates to the citizens of Georgia and the ability of law enforcement to enforce the laws of the state. The Comment will show that the Georgia Supreme Court's ruling in Elliott is markedly different than the majority of other states and the federal judiciary. The reasoning behind the rule, as well as the rule itself, is of new development in the state, though the court went back to common law over a century old to reach its conclusion. This Comment will also argue that the court's attempt to consolidate the realities of the present with the constitutions of the past serve primarily to confuse Georgia's citizens, frustrate its law enforcement, and fascinate its lawyers.

II. A Brief History of the Right against Self-incrimination

Upon the passage of the Bill of Rights and the adoption of the Fifth Amendment, for roughly 175 years the federal protections associated

[Page 396]

with self-incrimination were restricted to federal courts.¹⁵ States were left to come up with their own laws.¹⁶ However, in 1964 the Supreme Court of the United States held that this privilege found in federal law was applicable to the states by way of the Due Process Clause of the Fourteenth Amendment.¹⁷ Two years later, in the seminal case Schmerber v. California,¹⁸ the Court analyzed and limited the scope of the privilege. Schmerber, the defendant, was arrested for drunk driving, and his blood was drawn by a physician at the direction of a police officer. Analysis of the blood sample revealed an illegal level of intoxication, and the results of the test were admitted into evidence at trial.¹⁹ On appeal, the Court differentiated between compelling a suspect to produce physical evidence and giving testimony, finding the former to be allowable and coerced testimony to be unconstitutional.²⁰

While at the time of Schmerber the majority of states limited the privilege to testimonial compulsion, a few jurisdictions extended the sweep of the self-incrimination protection to nontestimonial evidence.²¹ Georgia provides one example. In Aldrich v. State,²² a suspect accused of driving a truck over a statutorily mandated weight level was convicted because he refused to drive onto a scale. On appeal, he argued that this compulsion violated his right against self-incrimination.²³ The Georgia Supreme Court ruled that this compulsion violated his constitutional right against self-incrimination, and has consistently

[Page 397]

held since then that self-incrimination will also apply to compelled acts and compelled testimony.²⁴

III. Breathalyzers, Refusals, and Whether They Can be Admitted Into Evidence: A Survey of Notable Jurisdictions

A. The Peach State

Georgia's long history of self-incrimination law mark it as a clear outlier among the other jurisdictions in the country. Indeed, Georgia prohibited defendants from testifying under oath at their own trial until 1962, while every other state had given defendants the right to testify by the end of the nineteenth century.²⁵ The setting of the decision in Elliott occurred, like many gripping stories involving alcohol and local law enforcement, in Clarke County, Georgia.²⁶ Andrea Elliott was stopped by a local police officer after she was observed committing several traffic violations in August of 2015.²⁷ Elliott admitted that she had been drinking earlier, and after the usual gamut of sobriety tests,²⁸ the officer arrested her. The officer then read the statutorily-mandated implied consent notice, which among other things stated that an individual's refusal to submit to a state-administered breath test might be offered as evidence of her guilt at trial.²⁹ Elliott later filed a motion

[Page 398]

to suppress the breath test at trial, arguing that the introduction of such evidence would violate her rights involving self-incrimination under the Georgia Constitution. The trial court denied this motion,³⁰ while the Georgia Supreme Court overruled the trial court.³¹

The Georgia Supreme Court based its decision on its previous ruling in Olevik and its interpretation of the Georgia Constitution.³² The court explained that it interprets the Georgia Constitution based on the original public meaning of the constitutional provision at the time the constitution was ratified, the latest being the 1983 Georgia Constitution.³³ Paragraph XVI bars self-incrimination by criminal defendants and was first ratified in the Georgia Constitution of 1877.³⁴ The Supreme Court of Georgia ruled in Olevik that the incrimination clause applies to both incriminating acts as well as testimony, based on the presumption of constitutional continuity, the rulings of two Georgia Supreme Court cases around the same time, and the fact that the clause has not changed since 1887. Therefore, a citizen could not be forced to submit to a breathalyzer test.³⁵ The court's ruling in Olevik on the issue overruled decades of previous Georgia case law.³⁶

In Elliott, the court upheld the Olevik decision, ruling that the refusal to consent to a breath test fell within Paragraph XVI, but it answered separately on whether the admission of that refusal at trial

[Page 399]

violated the Georgia Constitution.³⁷ The court first examined the 1877 provision, reasoning that when considered in isolation, it did not clearly preclude admission of evidence that a defendant refused a blood test.³⁸...