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Elliott v State – Elliott is not a fat kid with glasses who eats paste – Elliott is a constitutional rock star

Elliott v. State, S18A1204, Supreme Court of Georgia, February 18, 2019. In Elliott v. State, the Supreme Court of Georgia held that Art. 1, Sect. 1, Para XVI of the Georgia Constitutional prohibits the admission into evidence of the refusal of a compelled breath test under the Georgia Implied Consent law as an act of self-incrimination. This holding was the natural extension of Olevik v. State, 302 Ga. 228 (806 SE2d 505) (2017) where the Georgia Supreme Court held that the Georgia Constitution Art. 1, Sect. 1, Para. XVI prevents the State from forcing someone to submit to a chemical breath test.  Paragraph XVI first appeared in the Constitution of 1877, and was carried forward without material change into the Constitutions of 1945, 1976, and now our current Constitution of 1983. It has been repeatedly interpreted as protecting not only self-incriminatory statements but also compelled self-incriminatory acts as well. See Padelford, Fay & Co. v. Mayor and Alderman of City of Savannah ,14 Ga. 438, 454 (1854) (“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.”).

A constitutional provision retained from a previous constitution without material change retains the original public meaning that provision had at the time it first entered a Georgia Constitution, absent some indication to the contrary. See, e.g., Lathrop v. Deal, 301 Ga. 408, 428-432 (III) (B) (801 SE2d 867) (2017) (interpreting Art. I, Sec. II, Par. V of Constitution of 1983 in the light of the original meaning of the provision as it first appeared in the Constitution of 1861). An unbroken line of precedent beginning with Day v. State, 63 Ga. 668 (1879), and clarified in Calhoun v. State, 144 Ga. 679 (87 SE 893) (1916), that interpreted the 1877 Provision that is virtually identical to Paragraph XVI of the 1983 Constitution as barring compelled acts, not merely compelled oral or written testimony.  The Supreme Court found that at least six of its decisions since the 1877 Georgia Constitution gave the same construction to para XVI of the Georgia Constitution, and rejected the State’s arguments that the interpretation should be changed.  Elliott will not longer be remembered as a fat kid with glasses that eats paste as in the Movie, “The Sure Thing,” but as a Constitutional hero of the people.

The Elliott decision calls to mind the principle that the protection of the privilege “is as broad as the mischief against which it seeks to guard,” Counselman v. Hitchcock, 142 U. S. 547, 562.” Schmerber v. California, 384 U.S. 757 (1966). As stated by the attorney for Elliott, this was not a logical reach for the Georgia Supreme Court but rather the straight forward application of 150 years of black letter law. The State in this case attempt to confound the simple and simply the complex. Thank goodness for the courage of the Georgia Supreme Court to stand up for our Constitutional principles. One can almost see the wording on the ballot for the coming Constitutional Amendment of our hard fought right against self-incrimination, “An amendment to the Constitution of the State of Georgia to Paragraph XVI to prevent blood from flowing on the streets.”  The real question is if you can not tell a person is drunk by their driving and by their appearance and demeanor why are you testing their blood and breath in the first place.
The basis for the legal limit for alcohol is based on the junk science. The Long Beach and Fort Lauderdale studies which form the basis for the calls to reduce the legal limit from 0.08 grams to 0.05 grams are so ridiculously structured as to be laughable. They simply tested drivers in accidents after the police left and if they tested positive for alcohol or drugs, then the researches can back to the same spot a week later at the same time and pulled over two random cars and tested them. If the people they tested  a week later were not impaired by alcohol or drugs then there was a greater crash risk when driving with alcohol or drugs in a person’s system. Hilariously, it was found that driving on Marijuana was marginally safer than driving sober. Correlation does not mean causation.

Author: George C. Creal Jr.

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