HOW DID THE OLEVIK-PLEVIK DECISION AFFECT THE ADMISSIBILITY OF REFUSALS IN GEORGIA DUI CASES?

By Ben Sessions on November 7th, 2017 in Uncategorized

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.

SO, GIVEN THIS CHANGE IN GEORGIA DUI LAW, WHAT DO I DO?

If you have a question about the Olevik-Plevik decision and how it may impact your Georgia DUI case, contact The Sessions Law Firm today.