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For years, drivers who refused to take breath tests during DUI stops suffered serious consequences in Georgia. They faced the suspension of their license and their refusal was used as evidence against them at their trial. The refusal often created a presumption that the driver must have been drunk.

However, an important ruling by the Georgia Supreme Court last month means evidence of a Georgia driver’s refusal to take a breath test can no longer be used in his or her trial.

The justices unanimously ruled a person’s right against self-incrimination under the Georgia Constitution prevents prosecutors from bringing evidence of a refusal to blow into a breathalyzer to the driver’s trial.

The case of Elliott v. The State was decided on Feb. 14. Police arrested Andrea Elliott for driving under the influence of alcohol (DUI) in Clarke County, Georgia in 2015. She was stopped by a police officer who saw her committing traffic violations. Elliott refused to take a breathalyzer test and she was arrested under Georgia’s “implied consent notice.”

Georgia’s implied consent notice states drivers are required to submit to state administered chemical tests of their blood, breath, urine, or other bodily substances for the purpose of determining if they are under the influence of drugs or alcohol.

Drivers who refuse a breath test lose their driver’s license or privilege to drive in Georgia for a minimum of one year. Their refusal was admissible at their subsequent court hearing before February’s decision.

A Driver’s Refusal to Take a Breath Test May No Longer be Incriminating

Elliott fought the use of the refusal evidence at her court hearing. Her lawyer filed a motion to suppress her refusal of the breath test, claiming it violated her right against self-incrimination under the Georgia Constitution. Her attorney appealed the issue to the Georgia Supreme Court after losing at trial court level.

The court carried out an extensive review of historical records and case law. The opinion, written by Justice Nels Peterson considered the history of Paragraph XVI of the Georgia Constitution. The justices concluded, “state constitutional right does prohibit admission of evidence that Elliott refused a breath test.”

The ruling represents the second setback to Georgia’s strict DUI laws in as many years.

In 2017, in the case of Olevik v. State, Georgia’s Supreme Court ruled that a person’s right against self-incrimination prevented the state from forcing them to submit to a chemical breath test.

Driver Frederick Olevik argued the implied consent notice statute was unconstitutional and admitting the results of his breath test results violated his right against compelled self-incrimination under the Georgia Constitution.

The Elliott case represents a major change to DUI law in Georgia. It means a Georgia driver’s refusal to take a breath test cannot be used at a subsequent trial. Before February’s holding, the refusal to submit to the breath test was habitually used as a presumption that alcohol was present in a driver’s blood.  The ruling has far-reaching implications for both the constitutionality of the Georgia Implied Consent Notice and use of Breathalyzer test results at trial without defendants being warned of their right against self-incrimination.

If you or a family member has been charged with DUI or faces consequences under the implied consent notice, please talk to our Georgia criminal defense lawyers as soon as possible at (404) 913-1529.