REFUSAL TO SUBMIT TO BREATH TESTING CAN NO LONGER BE USED AGAINST YOU AT TRIAL

February 25, 2019

The Supreme Court of Georgia recently released a decision (Elliot v. State) finding that Georgia’s longstanding practice of using a DUI suspect’s refusal as evidence against them at trial is unconstitutional.

This is good for everyone. Why you ask? Because it protects your rights under the Georgia Constitution, specifically Art. I, Sec. I, Paragraph XVI. If you think this is going to result in more drunk drivers on the road, consider 2 factors: (1) ask yourself if someone really takes this into consideration before getting behind the wheel in an intoxicated state and (2) law enforcement can still obtain a warrant for a blood test.

Your right NOT to do something that would incriminate yourself is important. When an officer says that “anything you say can and WILL be used against you” they mean it. Before this decision (and another earlier one called Olevik v. State), you could refuse to provide a breath sample for any number of reasons, but that refusal could be introduced against you at trial. Keep in mind that the decision to refuse a breath test comes AFTER someone’s already been arrested for DUI and, in many cases, results in a 12-month license suspension prior to any finding of guilt or innocence.

I often get asked by clients, “was I wrong to answer the officer’s questions? Was I wrong to take a test or submit to field sobriety testing?” The answer is… “it depends.” There are simply too many variables and circumstances for a one size fits all answer. I’ve seen people end up with low test results which proved they were under the legal limit, if not completely sober. I’ve seen other cases where the test results substantially strengthened the State's case. 

It is important to understand that officers’ interpretations of field sobriety tests can be extremely subjective and even sober folks can fail them for a number of reasons. The bottom line is, play it safe - use Uber, call a friend, call a taxi, walk, or do the watermelon crawl - and if you are charged with DUI, call an attorney at the first opportunity. Even if you don’t have court for several months, there can be severe consequences regarding your privilege to drive.

For a free consultation, call 770-474-9335. 

 

 

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