GEORGIA SUPREME COURT DECLARES PORTION OF GEORGIA
DUI LAW UNCONSTITUTIONAL

Breaking news from Atlanta today is that the Georgia Supreme Court in the case of Elliott v. State (Read the Opinon Here) has invalidated an important piece of Georgia’s DUI law on the grounds it violates the Georgia constitution’s prohibition against compelled self-incrimination.

In summary, the Georgia Supreme Court held that it is unconstitutional in Georgia for the prosecution to use a person’s refusal to submit to a state-administered breath test as evidence against them at trial. Here is what the decision says and what it means for you and for the future of Georgia DUI law:

BACKGROUND

Georgia like other states treats obtaining a license to drive a vehicle on the public highways and roadways as a privilege and not an absolute right. Georgia law has long provided that in exchange for accepting the privilege to drive that comes along with obtaining a Georgia driver’s license, Georgia drivers implicitly agree to provide a sample of their breath, blood, or other bodily substance upon request by a law enforcement officer who has probable cause to believe they were operating a vehicle while under the influence of alcohol or drugs. This is what is known as Georgia’s “Implied Consent” law.

Refusing such a request for a breath sample carries consequences including an administrative license suspension. Prior to today, under the Implied Consent law it also allowed the prosecution to tell the jury at a criminal DUI trial that the accused refused to submit to a breath test and to argue that they only refused testing because they knew the test would show an unlawful alcohol concentration in their body. In other words, it allowed the jury to draw a negative inference against the accused from the fact that they exercised their legal right to refuse to provide a breath sample.

As you may know, in other contexts, the jury is not allowed to hold it against a person that they exercised a constitutional right. The clearest example of this is when a person exercises their constitutional right to remain silent and not answer police questioning.

The prosecution is not allowed to then argue to a jury that the person refused to answer questions because they knew the honest answers would have shown that they were guilty of a crime. In fact, the jury is not even allowed to know that the person asserted their right to refuse to answer questions.

This is because the Fifth Amendment to the United States Constitution has been interpreted by the courts to prohibit using a person’s choice to remain silent and to refuse to answer police questioning against them at trial. The Fifth Amendment provides that no person can be compelled to be a witness against themselves in any criminal case. In the federal courts, the Fifth Amendment’s protection against self-incrimination has been limited to apply only to oral or written testimony.

THE GEORGIA CONSTITUTION

The United States Constitution is not the only constitution that applies in Georgia. Georgia has its own state constitution that guarantees certain rights to its citizens. The state constitution can grant Georgians more rights under state law than its federal counterpart.

Article I, Paragraph XVI of the Georgia constitution is similar to the Fifth Amendment but worded slightly differently. Georgia’s version provides, “No person shall be compelled to give testimony tending in any manner to be self-incriminating.” Georgia’s Paragraph XVI has long been interpreted by Georgia’s appellate courts to include not just oral or written testimony but incriminatory acts as well.

In applying it to any acts compelled by the government, the Georgia courts have interpreted Paragraph XVI to provide Georgians with greater protections against self-incrimination than the Fifth Amendment provides.

THE OLEVIK DECISION

Despite the fact that the Georgia constitution prohibits the government from compelling a person to perform an act that generates evidence that can be used to incriminate them at trial, the Georgia courts for many years failed to apply this protection to compelled DUI breath tests. The courts decided that compelled breath testing following a DUI arrest was not an incriminatory act under the state constitution, and that was the law in this state for decades.

That changed, however, in 2017 with the Georgia Supreme Court’s opinion in the case of Olevik v. State. In that case, the Georgia Supreme Court overruled prior cases holding that compelling a person to provide a breath sample in a DUI case in Georgia was not an act protected by Paragraph XVI’s constitutional prohibition against compelled incriminatory acts.

The Georgia Supreme Court in Olevik held that compelling a person to blow into a breathalyzer with air from deep in their lungs is in fact an incriminatory act to which Paragraph XVI’s constitutional protections apply. That case did not hold that police officers could never ask a person suspected of DUI to provide a breath sample.

But it held that in order for the government to introduce evidence of a person’s breath test results at trial, they must now show that a person voluntarily waived their right against self-incrimination and agreed to provide the breath sample. A compelled or coerced breath sample that was involuntarily given by a DUI suspect would now clearly be inadmissible at a DUI trial after Olevik.

This created a firestorm in Georgia DUI law because Georgia law requires all police officers who arrest someone for DUI to immediately read them a warning that tells them that Georgia law REQUIRES them to submit to a chemical test of their breath or else face penalties including license suspension and the use of their refusal to take the test against them at the criminal trial.

Many DUI lawyers began arguing immediately after Olevik that if the right to refuse to provide a breath sample was now a constitutionally protected act under Georgia’s constitution, then it violates the state constitution for the government to get to use the fact a person exercised that right against them at trial. That led to today’s Elliott decision.

THE ELLIOTT DECISION

Today, the Georgia Supreme Court agreed with the DUI defense bar and held that the portion of Georgia’s DUI Implied Consent law that authorizes the government to use the fact that a person refused to provide a breath sample against them at trial violates Paragraph XVI of the Georgia constitution. The Court held that it is unconstitutional in Georgia to allow the prosecution to inform the jury of the fact that a person exercised their state right to refuse to provide a breath sample and to use that refusal as evidence of guilt of DUI.

This means that refusing a police officer’s request for a breath test now carries only administrative penalties in the form of a license suspension (which in itself can be plenty harsh) but no criminal penalties. This also means that the standard Implied Consent warning Georgia police officers read to all suspects arrested for DUI must be changed to eliminate the part of the warning that informs suspects that their refusal to submit to testing may be introduced against them at trial.

The Georgia legislature is currently in session and will very likely immediately begin drafting legislation to amend Georgia’s Implied Consent law to comply with the Elliott decision and update the warning read to suspects arrested for DUI. Hopefully this will lead to a more clearly-worded Implied Consent warning DUI defense attorneys have been requesting for years that better explains to suspects the true ramifications of exercising their right to refuse breath testing.

It is important to note that the Elliott decision applies only to breath testing. It does not apply if the police officer requests a blood test or obtains a search warrant from a judge authorizing the taking of a blood sample from the suspect.

The logic behind that distinction is strained and will continue to be challenged by DUI defense attorneys as law enforcement is likely to increase the frequency with which they seek blood tests for DUI suspects in the wake of the Olevik and Elliott decisions. Lastly, a suspect’s refusal to submit to a breath test can still be used against them in civil cases including an administrative license suspension hearing, which is where the state attempts to suspend a suspect’s driver’s license for refusing to submit to a breath test under the Implied Consent law.

If you have been arrested for DUI and have questions about how today’s decision affects your case, give one of our DUI attorneys a call today.