CAN THE STATE LAWFULLY INTRODUCE EVIDENCE OF AND COMMENT UPON THE DEFENDANT’S DECISION TO EXERCISE A CONSTITUTIONAL RIGHT TO REFUSE TO SUBMIT TO A BREATH TEST?
If you listened to the State, you would think Olevik literally changed nothing – that it had no effect upon evidence in Georgia DUI cases. Consider that for a moment:
THIS CONSTITUTIONAL RIGHT THAT THE GEORGIA SUPREME COURT JUST ACKNOWLEDGED HAS NO EFFECT WHATSOEVER ON THE EVIDENCE THAT THE STATE CAN USE IN DUI CASES.
It is just lunacy and desperation.
What good is a right that can be used against a person if they decide to exercise 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. Accordingly, the State should not be permitted to introduce evidence of or comment upon the Defendant refusal to submit to a breath test.
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