This is a portion of a brief that addresses the affect of the Olevik decision upon the implied consent notice read to suspects following a DUI arrest. I have previously written about how the State should now be required to give Miranda advisements to DUI suspects that are under arrest and requested to submit to a breath test. This post addresses whether the implied consent notice provided to DUI suspects is impermissibly misleading when it states to a suspect that the State may introduce refusal of the state-administered test against the suspect at trial.
The implied consent advisement provided to the Defendant misled the Defendant to believe that his refusal to submit to state-administered breath test could be used against him at trial. Accordingly, the state-administered breath test should be excluded from evidence in the trial of this case.
THE BASIC RULE REGARDING THE IMPLIED CONSENT NOTICE IS THAT IT CANNOT MISLEAD A PERSON, AND IF IT DOES, DOES THE MISINFORMATION HAVE THE POTENTIAL TO AFFECT A PERSON'S DECISION TO SUBMIT TO OR REFUSE THE TEST.
Our appellate courts have stated that
[T]he purpose of the implied consent law is to notify drivers of their rights so that they can make informed decisions. Accordingly, we have suppressed the results of chemical tests where the driver was misinformed of his rights and where that misinformation may have affected his decision to consent.
State v. Becker, 240 Ga. App. 267, 271, 523 S.E.2d 98 (1999), citing Garrett v. Dept. of Public Safety, 237 Ga. 413, 415, 228 S.E.2d 812 (1976) (emphasis added). In determining whether the information provided by the implied consent advisement so misleading as to lead to the exclusion of the state-administered chemical test, our courts evaluate “whether the notice was substantively accurate so as to permit the driver to make an informed decision about whether to consent to testing.” Kitchens v. State, 258 Ga. App. 411, 413, 574 S.E.2d 451 (2002), quoting, Becker, 240 Ga. App. at 271.
Georgia courts have consistently held that misinformation regarding the impact of a refusal of the requested chemical test (or a test result in excess of the applicable legal limit) should result in the exclusion of the state-administered chemical test or refusal thereof. In Deckard v. State, 210 Ga. App. 421, 436 S.E.2d 536 (1993), the Court of Appeals reversed the trial court's ruling that denied the defendant's motion to exclude the state-administered chemical test based upon the officer misinforming the defendant that a refusal would result in a six-month suspension of his out-of-state driver's license.
[The defendant in Deckard] was misinformed as to the consequences of his failure to submit to chemical analysis because the Georgia Department of Public Safety is without authority to absolutely suspend or revoke a nonresident's driver's license. OCGA § 40-5-51 (a) provides that as to a nonresident driver of a motor vehicle, Georgia may suspend or revoke only the “privilege of driving a motor vehicle on the highways of this state … in like manner and for like cause as a driver's license issued under this chapter may be suspended or revoked.” Id.
210 Ga. App. at 422. “Since the consent was based at least in part on deceptively misleading information concerning a penalty for refusal, which the State was unauthorized to implement,” the decision to submit to the requested chemical test was not “an informed choice under the Implied Consent Statute.” Id. Accordingly, the test results were rendered inadmissible. Id. It is important to note that the Kitchens court found the lack of intent to mislead by the officer was irrelevant to the decision:
[A]lthough we find no suggestion that the officer intentionally misinformed [the defendant] concerning the penalty for refusal … we cannot conclude that his misstatement of the law did not induce the consent. It directly impacted [the defendant's] options under the Implied Consent Statute.
In Kitchens v. State, the defendant possessed an Alabama license. The arresting officer properly read the implied consent notice to the defendant. However, subsequent to the reading of the implied consent notice, the defendant expressed confusion regarding implied consent, and the officer eventually stated if she refused the requested chemical test, “you're automatically charged with DUI and your license [is] going to be suspended.” 258 Ga. App. at 412. The Court of Appeals held in Kitchens that
we have previously recognized that misinforming the holder of an out-of-state driver's license that refusal to submit to the state's test would result in revocation of the out-of-state license is the type of misleading information which may affect the decision to submit to the test, and may require suppression of the test results. ‘Since the consent was based at least in part on deceptively misleading information concerning a penalty for refusal, which the State was unauthorized to implement, [defendant] was deprived of making an informed choice under the Implied Consent Statute. Accordingly, the test results were rendered inadmissible.'
258 Ga. App. at 414-15 (citations omitted); see also, State v. Pierce, 257 Ga. App. 623, 571 S.E.2d 826 (2002) (affirmed exclusion of breath test where Defendant was told after the reading of the implied consent warning, but prior to making decision to submit to the test, that his out-of-state license would be suspended for refusal); State v. Renfroe, 216 Ga. App. 709, 455 S.E.2d 383 (1995) (relied upon State v. Coleman, 216 Ga. App. 598, 455 S.E.2d 604 (1995) in affirming exclusion of the refusal of the state-administered chemical test based upon the failure to inform the defendant that only his privilege to driver in the State of Georgia could be suspended as a result of the refusal).
AFTER OLEVIK–PLEVIK, A DUI SUSPECT HAS A CONSTITUTIONAL RIGHT TO REFUSE TO SUBMIT TO A BREATH TEST.
Prior to Olevik v. State, No. S17A0738, 2017 WL 4582402 (Ga. Oct. 16, 2017), Georgia courts routinely recognized that the right to refuse a state-administered chemical test following a DUI arrest was not a constitutional right:
As we noted, the United States Supreme Court ruled it was not fundamentally unfair to allow the refusal into evidence against the driver because “the driver's ability to refuse to submit to chemical testing was not a right of constitutional dimension,” but rather was “a matter of grace bestowed by the South Dakota legislature.” South Dakota v. Neville, supra at 565, 103 S.Ct. 916. Indeed, this Court has readily acknowledged that to be permitted to refuse to submit to chemical testing is not a right of constitutional magnitude but is one created by legislative enactment, and that a violation of due process is not implicated when the statutory implied consent notice does not inform the driver that test results could be used against the driver at trial.
Sauls v. State, 293 Ga. 165, 167, 744 S.E.2d 735, 737 (2013), citing Klink v. State, 272 Ga. 605, 606(1), 533 S.E.2d 92 (2000).
Olevik marks a landmark change in how we must view the right to refuse a request for submission to a state-administered test:
Accordingly, we overrule Klink and other cases to the extent they hold that Paragraph XVI of the Georgia Constitution does not protect against compelled breath tests or that the right to refuse to submit to such testing is not a constitutional right.
Olevik v. State, No. S17A0738, 2017 WL 4582402, at *12 (Ga. Oct. 16, 2017). The cases that Olevik specifically overruled are Sauls v. State, 293 Ga. 165, 167, 744 S.E.2d 735 (2013); Cooper v. State, 277 Ga. 282, 290 (V), 587 S.E.2d 605 (2003); Lutz v. State, 274 Ga. 71, 73 (1), 548 S.E.2d 323 (2001); Fantasia v. State, 268 Ga. 512, 514 (2), 491 S.E.2d 318 (1997); Oliver v. State, 268 Ga. App. 290, 294 (2), 601 S.E.2d 774 (2004); State v. Coe, 243 Ga. App. 232, 234 (2), 533 S.E.2d 104 (2000); State v. Lord, 236 Ga. App. 868, 870, 513 S.E.2d 25 (1999); Nawrocki v. State, 235 Ga. App. 416, 417 (1), 510 S.E.2d 301 (1998). The basis upon which courts routinely admitted evidence of and allowed the State to comment upon a Defendant's refusal to submit to a breath test has been altered. The right to refuse, which our courts routinely called a matter of legislative grace, has been recognized as a constitutional right that should not be used as a sword against the citizen that exercises it.
If the State can use a Defendant's decision to exercise his right to refuse to submit to a breath test against him, that constitutional right is of no value. That is the most basic reason why our courts have traditionally scoffed at the notion of using the decision to exercise a constitutional right against a person: “To punish a person because he has done what the law plainly allows him to do is a due process violation “of the most basic sort.” Bordenkircher v. Hayes, 434 U.S. 357, 363. “For while an individual certainly may be penalized for violating the law, he just as certainly may not be punished for exercising a protected statutory or constitutional right.” United States v. Goodwin, 457 U.S. 368 (102 S. Ct. 2485; 73 L. Ed. 2d 74) (1982). The use of a Defendant's decision to exercise his right to be free from self-incrimination against him runs afoul of both the U.S. and Georgia Constitution's Due Process Clause.
Beyond the more general prohibition against using a constitutional right against a Defendant, our case law has consistently held that “[i]t is error for the prosecutor to comment to the jury on the defendant's exercise of his constitutional right to remain silent.” Marlow v. State, 152 Ga. App. 218, 219, 262 S.E.2d 460, 461–62 (1979) citing Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 and Mitchell v. State, 226 Ga. 450, 455(2), 175 S.E.2d 545 (1970).
The law prohibits improper comment upon the exercise of the right to silence or any other invocation of the right against self-incrimination. What is proscribed are attempts by the state to infer or encourage the jury to infer guilt from that exercise. Thus, the state may not use against an accused the fact that he stood mute or claimed his privilege.
Jacobs v. State, 137 Ga. App. 592, 593, 224 S.E.2d 462, 464 (1976), citing Reid v. State, 129 Ga.App. 660(5), 200 S.E.2d 456. Olevik, supra, establishes that a request for submission to a breath is protected by self-incrimination clause of the Georgia Constitution.
IF YOU HAVE A CONSTITUTIONAL RIGHT TO REFUSE A BREATH TEST, IMPLIED CONSENT IMPROPERLY STATES THAT A REFUSAL TO SUBMIT TO TESTING MAY BE USED AGAINST A DUI SUSPECT.
Accordingly, the implied consent notice provided to the Defendant improperly stated that his refusal to submit a test would be used against him at trial. This is the type of misleading and inaccurate information that would induce a person to submit to state-administered breath test, and therefore, the test results in this case should be excluded from the evidence in the trial of this case.
Wherefore, the Defendant respectfully prays this Honorable Court grants his motion to exclude the results of the state-administered breath test from the trial of this case.