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Yeong Sik Oh v. State
Citation: 815 S.E.2d 95Docket: A18A0642
Court: Court of Appeals of Georgia; May 14, 2018; Georgia; State Appellate Court
At the time of considering Oh's motion to suppress and filing his notice of appeal, the Supreme Court had not yet ruled in Olevik v. State, which established that breath tests taken under Georgia's implied consent warning are evaluated under the Fifth Amendment and the Georgia Constitution's self-incrimination clause, rather than the Fourth Amendment. This ruling confirms a defendant's constitutional right to refuse a breath test, as compelled acts of self-incrimination are protected. The Supreme Court emphasized that the determination of whether a defendant's actions were compelled is based on the totality of circumstances, similar to assessing the voluntariness of consent to a search. Factors influencing this assessment include the defendant’s age, education, intelligence, detention duration, awareness of constitutional rights, the nature of questioning, and any deceptive police practices. The Supreme Court noted that the same factors used to evaluate the voluntariness of consent to search apply to determining the voluntariness of an incriminating act or statement. Therefore, even though the trial court initially applied a Fourth Amendment standard, it could also be reviewed under the Olevik framework. The appellate review will focus on whether Oh's submission to the breath test was voluntary. Oh claims confusion over the implied consent warning, stating he requested clarification multiple times and felt pressured by the officer's frustration, which he argues should be interpreted as a refusal to consent rather than assent to testing. Oh claimed that the presence of a backup officer during the roadside encounter intimidated him while he assessed his response to a consent warning. However, the court disagreed, stating that the circumstances indicated that Oh voluntarily consented to the testing. At 24 years old, Oh was deemed to possess at least average intelligence, and the traffic stop lasted under 40 minutes, which was considered reasonable given the officer's responsibilities. There was no evidence of physical coercion or threats, and the court noted that Oh did not exhibit signs of psychological distress from the stop. The officer did not attempt to mislead Oh, having read the consent warning twice and clearly explaining that a 'yes or no' response was required. Although Oh initially expressed confusion about the warning, his eventual consent after repeated clarification suggested he ultimately understood the situation without being pressured. The court concluded that Oh's consent to the breath test was given voluntarily, affirming the trial court's denial of his motion to suppress and upholding his conviction. The trial court's order was issued on March 17, 2017, and Oh's appeal notice was filed on May 11, 2017. The Supreme Court's decision in Olevik was released on October 16, 2017.