You may have seen or heard about the new Georgia Supreme Court decision last week Olevik v. State. The case involved a Defendant actually named “Plevik.” The Court documents incorrectly spelled Plevik with an “O”, hence the case name “Olevik.”
The issues in Olevik were:
- Is the Georgia Implied Consent law unconstitutional, both on its face and as applied? No
- Does a person arrested for DUI in Georgia have a constitutional right to refuse a request for a state chemical breath test? How about blood? Yes and Yes
- Is the act of blowing into the Intoxilyzer machine protected under the Georgia Constitution prohibition against compelling someone perform an act which might incriminate themselves? Yes
- Is a warrantless breath test incident to a lawful arrest a violation of the right to unreasonable searches under 4th amendment and equivalent provision in the Georgia Constitution? No
- If a person does take a breath test after arrest, what must the State show to have the breath test admitted into evidence and show that the Georgia Constitution’s prohibition against compelling a Defendant to say or do something which might incriminate him has not been violated? That the person voluntarily “consented” to take the test and was not coerced or forced into doing so, just like the criteria used in Williams for blood tests.
Note that this case was talking about our rights under the Georgia Constitution, not the 5th Amendment to the US Constitution. The Plevik case basically said that under the Georgia Constitution, Art. I, Sec. I, Par. XVI, a person under arrest for DUI cannot be forced to blow into the state breath test machine, although he CAN voluntarily waive his right and consent to blow into the machine. He also has a right to refuse to take the test under the same provision in the Georgia Constitution.
In the next few weeks I will be sending a revised “4 Simple Rules” to my client list. One of the rules will be: You have a Constitutional right in Georgia to refuse the State administered test; although you could still face a civil penalty of one year license suspension, you could also opt for a one year limited permit with Interlock Device, and could then fight your DUI charge with the State having no blood alcohol test and with no field sobriety evaluations.