I’ll write more on this case later, but I wanted to provide a quick update on a recent case. This week, the Supreme Court of Georgia held that the State cannot use against defendants in DUI trials evidence of their refusal to take a chemical test. While the United States Supreme Court has held otherwise, under Georgia’s constitution, which provides its citizens with additional protections not provided by the Federal Constitution.

Several months ago, the Georgia Supreme Court requested amicus briefs from the Georgia Prosescuting Attorney’s Counsel, the Office of the Solicitor-General, and the Georgia Association of Criminal Defense Lawyers. Those groups briefed the case well, and it was an honor to present argument on behalf of GACDL. Over my career, it has been my privilege to be amicus counsel on important cases before the Court. And this was was particularly satisfying.

 

There has been much talk in the media about Olevik v. State. My algebra teacher long ago would make me “show my work” on tests and sometimes at the chalkboard. I’ve linked to the opinion where you can see where the Supreme Court has shown its work in 49 pages of legal writing.  But I’ll highlight a few key points.

The holding in Olevik is that the Georgia State Constitution’s protections against self-incrimination apply to acts of the accused that generate incriminating evidence as well as to statements made that are incriminating — and providing deep lung air is an incriminating act as defined by the Georgia Constitution. Under Article 1, Section 1, Paragraph VI of the Georgia Constitution, “no person shall be compelled to give testimony tending in any manner to be self-incriminating.” Note, the Georgia Supreme Court has not touched upon the Fifth Amendment of the United States Constitution. And the Georgia Supreme Court has overturned a line of cases going back to a case called Klink (aptly named).

The Court makes it clear that some acts are testimonial and are essentially the same as words when it comes to self-incrimination. Some examples from the case:

Self Incriminating Acts

  • Forcing a Defendant to put his feet on footprints located near a crime scene;
  • Requiring a Defendant to stand up at his trial so that the witness could verity that the defendant’s leg had been amputated in a way that corresponded to tracks left at a crime scene;
  • Forcing a driver to drive his truck onto scales to see if his rig is overweight.
  • Forcing a suspect to provide a handwriting sample.

Not Self-Incriminating Acts

  • Requiring the accused to be present so that law enforcement an undress him to remove bloodstained clothes;
  • Requiring the accused to stand in place to be photographed;
  • Requiring the accused to provide a DNA sample;
  • Taking an impression of the teeth of the accused;
  • Requiring the accused to undergo surgery for the removal of a bullet.

Blowing hard into a breath machine is a self-incriminating act because the defendant has to do some work to produce air from deep in his lungs to produce a sample. If you’ve ever taken one of these, either at a jail or at some booth at a beer festival where a DUI lawyer was a sponsor, you will know what I mean. If scientists ever perfect a technology that will allow police to extract fog from a mirror to test for blood alcohol, then future drunk drivers will be in big trouble. For now though, the method of extraction is an incriminating act.

What Does it All Mean?

It all means nothing to Mr. Olevik, who lost his appeal anyway. Future defendants, however, can testify at a motion to suppress hearing and say “when I heard what the police officer read that card, I felt like he was forcing me to give him a breath sample.” And, if the trier of fact finds that the statement is truthful, then the evidence of the breath test is inadmissible. However, if the police extract a blood sample, then there is no self-incriminating act. And if the finder of fact finds that a suspect voluntarily gave a breath sample, then there was no self-incriminating act. However, it is very likely that when a suspect refuses to provide a breath sample then the State will not be allowed to comment on such refusal at trial. A thornier question will be whether the State can comment upon the refusal to take a blood test.

And there, in a nutshell, is Olevik. By the way, this is not a Fifth Amendment case. It is only good in Georgia. Because it is an interpretation of the Georgia Constitution.

 

The Court of Appeals, with a panel made up of Judges Dillard, Ellington, and Phipps, has reversed an order granting a motion to suppress from the State Court of Fayette County.

I write about this case because it further develops the law in the area of Miranda and field sobriety testing and because it illustrates how the standard of review on appeal can change when a significant part of the proof is on videotape.

In State v. Mosely, the Court of Appeals reviewed the field sobriety tests in a DUI case. The facts are fairly straightforward. Police responded to a call from a convenience store clerk who witnessed a dispute in the parking lot between a man and a woman. Police arrived to find a man and woman standing beside Mr. Mosley’s car, which appeared to have been involved in an accident.

At which point, the office became suspicious of DUI because the man had trouble walking and smelled of alcohol. A second deputy appeared who asked the man if he would take field sobriety tests. After some discussion, the officer said:

Listen, listen, listen to me – step back and lean on the bumper. Would you mind voluntarily doing field sobriety tests? … I’m saying I’m going to conduct some field-sobriety test, test your impairment to see if you are safe enough to drive and/or walk away.

It was all downhill from there. Mr. Mosely took the tests and was arrested for DUI.

The trial court (Judge Carla McMillan, who is now on the Court of Appeals) held that the request for field sobriety was custodial and that the officer should have Mirandized Mr. Mosely before proceeding.

The Court of Appeals reversed noting several things:

  • since the evidence was undisputed and was largely captured on videotape, the standard of review should be de novo;
  • since the officer told Mr. Mosley that the test was voluntarily, it was not compelled;
  • since the defendant was told that the detention would be temporary, it did not rise to the level of custody (what about the part where the officer said that he was going to conduct the tests and that the purpose was to see if he could walk or drive away. Sound pretty open-ended, no?)

There are a couple of important takeaways from this case.

  • If you can proceed to the appellate courts on undisputed facts or with videotaped evidence, you have a shot at winning with a less deferential standard of review;
  • Statements about what an officer is “going to” do does not imply a command. A statement that participation in field sobriety testing is necessary to see if a person is safe enough to leave is not necessarily a statement that the person is not free to leave or that successful completion of field sobriety testing is pre-requisite to leaving the scene.

This case also leaves a question. To what extent is a holding by an appellate panel or the Supreme Court to be viewed as precedent where the Court has reviewed a case de novo? Is the appellate court making a ruling of law, or it acting as a second trial court reviewing a unique set of facts under existing law?

If I’m at a suppression hearing and this case comes up, I’m going to say it’s the latter.