The Supreme Court of Georgia has made an important decision regarding the State’s use of a person’s right to refuse a DUI breath test as evidence in that person’s DUI trial . Elliott v. State , originally a 2015 Georgia DUI case , made it before the Supreme Court of Georgia.
In a unanimous opinion, the Court held that when a person refuses to submit to a chemical test of his or her breath, the fact that they refused testing cannot be used against the accused at trial. Prosecutors should no longer be able to comment on a person’s refusal or motive to refuse testing. Judges will no longer instruct juries that they should presume a person was under the influence of alcohol merely because he or she refused to take a state breath test. The Georgia Supreme Court has now officially recognized that a person has a constitutional right to refuse a DUI breath test .
To begin with, the Georgia Implied Consent Notice will have to be changed by the Georgia legislature. Until such time that the General Assembly re-writes the statute that controls the warning, the trial courts will have to perform an analysis in each DUI case to determine if the accused voluntarily submitted to testing or was coerced into providing a breath sample with false information and/or implied threats by law enforcement.
In the meantime, Georgia drivers who have been drinking alcohol should not voluntarily provide breath samples to law enforcement officers if they are stopped for a traffic violation or at a roadblock. Drivers should continue to cooperate and be respectful to officers but politely refuse to submit to field sobriety testing and chemical testing of the driver’s breath since the sole purpose for the testing would be to gather evidence from the driver that could be used in court. Of course, we advise ALL drivers to abstain from drinking alcohol prior to operating a motor vehicle and encourage use of ride share services such a Uber and Lyft .