Georgia Supreme Court’s New Opinion Changes DUI Laws

Lawrence J. Zimmerman

Yesterday, in a long awaited opinion, Olevik v. The State, the Georgia Supreme Court’s new opinion changes DUI laws. In an opinion authored by the very conservative and very new Justice, Nels Peterson, the Court went through painstaking detail discussing framers’ intent when drafting the Georgia Constitution. While our firm is not a DUI law firm, we have certainly handled and won a multitude of those cases over the years, this 0pinion is a very interesting read. Here is the link:

Let’s be clear, this case is unique to Georgia since our Constitution says that “[n]o person shall be compelled to give testimony tending in any manner to be self-incriminating.” Ga. Const. 1983, Art. I, Sec. I, Par. XVI (“Paragraph XVI”). Our Court has interpreted that to mean not only testimony, but also the act of taking deep breaths and blowing very hard into a machine, which is not the same as “merely collecting breath expelled in a natural manner.” Id. at 31. Had police been able to collect someone’s breath as it floated down the street after being expelled naturally and test it for alcohol, this case would not have ever been brought before the Georgia Supreme Court.

The Court’s detail in viewing this through the lens of strict constructionism is interesting no less since the public now thinks that the Court is some hokey liberal court okaying drunk driving. To the contrary, the Court is reviewing the Georgia Constitution and taking the literal meaning and applying it to our laws. In fact, the Court said, ” the Constitution, like every other instrument made by men, is to be construed in the sense in which it was understood by the makers of it at the time when they made it. To deny this is to insist that a fraud shall be perpetrated upon those makers or upon some of them.” Id. at 15 citing Padelford, Fay & Co. v. Savannah, 14 Ga. 438, 454 (1854). If the public wants a better idea of who these judges are similar to that they know, who believe in interpreting the Constitution this way, think U.S Supreme Court and now deceased Justice Antonin Scalia, or his replacement Justice Neil Gorsuch or Justice Clarence Thomas.

How does this new ruling affect the public? First of all, it adds just another layer to our Constitutional protections. However, it does not allow people to drive drunk, so do not think of it as a free pass to get tipsy and drive home. As a sidebar, there is no reason to drink and drive any longer with the advent of Uber and Lyft. What it does mean is that the police must inform you similarly to Miranda warnings that you have a Constitutional right not to incriminate yourself with a breath test. The police already are required to read you an Implied Consent warning letting you know that you do not have to take any test but a refusal will cause a license suspension. This now adds to it and police will probably advise suspects that they cannot be compelled; however, suspects will still need to weigh the possible loss of a driver’s license should they refuse (one year license loss) versus taking a breath test that is over the legal limit (may or may not be a one year suspension).

Should you refuse the test, the police can still attempt to obtain a search warrant for your blood regardless of your objections. At the end of the day, it may require more effort by the police, but it may not change the number of arrests and convictions made. Quite frankly, I can foresee police now linking up via video from their patrol cars to the magistrate judges and immediately getting a signed search warrant for someone’s blood. This case does not eradicate the implied consent laws either since in Georgia the penalty is a civil one not a criminal one.

In addition, I find it fascinating that the Georgia Supreme Court goes back to almost 1877 in crafting this opinion and really drills down on original intent. I wonder if they are foreshadowing some of their forthcoming opinions. Although, since Justice Nahmias got on the bench, the Court has shifted much more in this direction and most of his opinions have this same flavor. I have read some comments on news sections written by people who are not lawyers and they think this opens the door to allowing people to drive drunk. This does not in any way say this in this opinion. It is why you should always consult a lawyer when reading one of these opinions because you may misunderstand it, and let’s be honest, even smart reasonable lawyers can also disagree on its meaning. I am a big believer in all of our Constitutional protections; unfortunately, it seems most of the public is only concerned with the Second Amendment. What concerns me is all of our amendments and our right to be free from harassment by the Government.

Many people will say to me, “if I don’t commit crimes, why do I care?” Well, I have represented my fair share of falsely accused people, so you should care because one day it could be you. And, I have also represented my fair share of guilty people where the police violated the Constitution and one day that could be you as well. Recently, NBC’s 11 Alive did an investigative story on a Cobb County Police officer who was supposedly arresting people without any evidence. You can see that story by clicking on this link:

Also, if you want to see me discuss this new opinion live on television, you can switch over to the media section of our website and click on this link, where I sit down with my friends Vinnie Politan and Natisha Lance to discuss it. If you have any appellate issues and want firm that has experience with the Georgia Supreme Court contact us.

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