New Law on Refusals in DUI Cases

Just last month, in the landmark case of Elliott v. State, the Supreme Court of Georgia ruled that the admission of someone's refusal to submit to a breath test in DUI cases are not admissible at trial and violate the Georgia Constitution. In prior cases, the Georgia Constitution has provided more protections than the United States Constitution with regards self incrimination. The Georgia Constitution says, "no person shall be compelled to give testimony tending in any manner to be self-incriminating.” Our courts have said that this includes statements AND acts. Performing a breath test is considered an act, and therefore one cannot be compelled, coerced, or forced against their will to provide one.

In Elliott, the Georgia Supreme Court said that the refusal to provide a breath test is considered testimony that can be self incriminating, as testimony can include statements outside of statements made on the witness stand in court.

What does this mean going forward? It does NOT mean that cases that have already been resolved with a DUI conviction where someone refused a breath test will be overturned, expunged, or "thrown out." It does NOT mean that the State or Judge will dismiss your pending case where you refused a breath test. It simply means that evidence of your refusal to submit to the breath test cannot be used at trial against you. It does not prevent all evidence prior to arrest being used against you.

Also, this case does NOT prevent police officers from seeking a search warrant from a Magistrate to draw blood for those who refuse to provide a breath sample.

And the Supreme Court did not rule as to how this would affect administrative license suspensions for those who refused a breath test.

Lastly, there will be more litigation to come regarding breath tests taken after the reading of the implied consent warning, which states that your refusal can be offered against you as evidence at trial.

If you have a DUI case with these issues, please contact Kyle Jarzmik.