Refusing a breath test will land you in serious trouble.
At least that was the position before. As of February 2019, the Georgia Supreme Court held that a Georgia breath test refusal can no longer be used against you in court.
As with several other states in the US, drunk driving or driving under any sort of influence is prohibited. This is because of the damaging effects of drunk driving. Consider this, in 2016, there were 1,554 fatal car crashes in Georgia. 24% of the crashes were caused by drunk driving.
Obviously, drunk driving can lead to terrible consequences for the driver and innocent road users. This is why police officers are empowered to pull you over and administer a breath test if they suspect you of driving under the influence.
Under Georgia state law, refusing the breath test carries serious consequences This included using your refusal against you in court. But this position has been changed by the recent decision of the Georgia Supreme court in Elliott v State.
How does this affect the current state of the law? What would it mean for drivers that are now pulled over for a DUI? Does it mean that a Georgia breath test refusal no longer carries consequences? Read on to find answers to all these and more
Implied consent laws in Georgia
Georgia, like every other US state, has implied consent laws. What these laws basically prescribe is that as a driver on Georgia roads, you have impliedly consented to a Blood Alcohol Content (BAC) test.
The laws exist because your access to drive on Georgia roads is considered a privilege, not a right. Therefore, by reason of the implied consent laws, you are regarded as having consented to be tested in exchange for your driving privileges.
Under the implied consent laws, a police officer that reasonably suspects you of a DUI can pull you over and administer a test. They have the authority to test your blood, breath, saliva or any other bodily fluids.
An interesting point in the law though is that you do not actually have to consent to be tested. This means that, as a general rule, if you refuse to submit to the test, you cannot be forced to do so (unless a search warrant is obtained). Before the results of any breath test will be admissible in court, the police officer that took the test must first testify that you consented to it. If you did not consent, the test results will be thrown out.
Many drivers make use of this opportunity to refuse breath tests. In fact, as recorded by the National Highway Traffic Safety Administration, 20% of the time, drivers refuse to submit to a breath test. This varies widely though. In some states like Delaware, only 2.4% refuse but in New Hampshire, as many as 81% say ‘No’ to a breath test.
The consequences of a Georgia breath test refusal
Yes, you can refuse a breath test. But you’ll likely regret doing that later. The consequences of a Georgia breath test refusal were designed to leave drivers with pretty much no option but one: Submit to the test.
If you submit to the test and it is found that your BAC is up to .08 or higher, your license will be suspended for up to 6 months. This is apart from any other charges that may be brought against you in court.
But failing to submit to a breath test pretty much guarantees that your license will be suspended for up to a year. Apart from this, the Georgia Department of Driver Services (DDS) will not accept any application you make for a limited driving permit during the period.
Apart from this, prosecutors can and often do raise this refusal in court during the course of a trial. They raise the refusal as evidence that you had something to hide and in some circumstances, this refusal can harm your case before the court. But all that seems to have changed now.
Enter: Elliott v State
In the case of Elliott v State, the Georgia Supreme Court ruled that those parts of Georgia’s law that approved the use a breath test refusal in court were unconstitutional. According to the Court, bringing up the breath test refusal in the court is contrary to the right against self-incrimination under the constitution.
The case involved the prosecution of Andrea Elliott who was arrested on suspicion of a DUI earlier in 2015. She was stopped by a Clarke County police officer who requested that she submit to a breath test. She refused and was arrested under the implied consent laws.
During the trial, her lawyer filed a motion to suppress her refusal of the test, arguing that it would violate her right against self-incrimination. Although the motion was defeated at the trial court, she appealed and the Georgia Supreme Court ruled in her favor.
The court, in reaching its decision, examined cases dating back to 1879, as well as the 2017 decision in Olevik v State. In the Olevik case, the same Supreme Court had previously ruled that the right against self-incrimination prevented a person from being forced to take a breath test.
In its decision, the court stated that the state’s constitution prohibited the admission of evidence that Elliott refused a breath test. It concluded that the provisions allowing a Georgia breath test refusal to be admitted into evidence during a criminal trial were unconstitutional.
The court however noted that the decision only affected “chemical tests of a driver’s breath”. The decision was not meant to apply to blood, saliva or other tests. The court also emphasized that the decision would not affect any administrative consequences that follow from refusing a breath test.
The new position
From the holding of the court, it is clear that things have changed a bit as it concerns the consequences of refusing a breath test. The implication of the decision is that you can refuse a breath test without having to fear that it will be used against you in court.
Be careful though. The decision is very limited and will not affect the authority of the DDS to suspend your license for a year. It also does not apply to other tests. So if you are requested to take a blood test, refusal can and probably will be used against you in court.
What should you do if you are asked to take a breath or other test?
In many cases, it is best to comply with the police. Even if they arrest you and take you to the police station, go along with them. When you get out of jail though, you should immediately contact a DUI attorney and apprise them of the facts. They will help you find the best way to defeat the charge(s).
If you have any questions about how the Georgia DUI laws affect you, please get in touch with us at Joseph Williams Law. If you are facing a DUI charge, remember that there are always two sides toa story. Our duty is to see that your side gets heard. Get in touch with us today at 912-314-9193 to schedule a free consultation