The Right to Refuse a Breath or Blood Test in A DUI Case

Just a few months ago, the Supreme Court of Georgia in Olevik v. State (No. S17A0738) decided that individuals have a Constitutional right to refuse a breath test when requested by police in a DUI investigation. Part of the problem is that the implied consent notice that officers must read suspects upon arrest for DUI tells the suspect that if they refuse to take the state administered test (breath, blood, or urine), then that evidence may be offered against them at trial. While the Court upheld the Constitutionality of the implied consent notice, it overturned a significant amount of case law holding that the previously held that the right to refuse a breath/blood test is one of legislative enactment.

Therefore, going forward it appears that either the content of the implied consent notice will have to be changed or the reading of Miranda warnings will have to be read in addition to the implied consent notice for someone's refusal to be admissible against them.