Recently, in Elliot v. State, the Supreme Court of Georgia issued a unanimous decision preventing a DUI defendant’s refusal to take a breath test from being used as evidence at trial.

Before the ruling, prosecutors could introduce evidence that the driver refused to take a breath test after being advised of Georgia’s Implied Consent Law. This law is the notice that the officer reads from a card or verbally communicates to the driver when the officer wants to take blood, breath, or other bodily substances from the driver. The implied consent notice also provides that refusal to comply can result in a license suspension and the refusal can be offered as evidence at trial. If the driver refused and went to trial, the jury would hear that the driver refused the state’s administered test. That was always a challenge for the defense to overcome.

Andrea Elliott was stopped by Athens police in 2015 and charged with driving under the influence of alcohol and other offenses.

She was read the implied consent notice. Elliott refused to take a breath test and was arrested.

Her lawyer filed a motion to suppress the evidence, which the trial court denied.

Finally, the Supreme Court of Georgia reviewed the decision. During oral arguments in April 2018, her lawyer argued that the use of Elliott’s breath test at trial was a violation of her constitutional protections against self-incrimination under the U.S. Constitution’s Fifth Amendment and the Paragraph XVI of the Georgia Constitution.

The State’s attorney argued the requirement to take a test is not a “coerced action” but is instead part of the agreement between a driver and state laying out the duties and obligations necessary to drive in Georgia.

The 94-page opinion overruling the lower courts took the 2017 ruling in Olevik v. State, that said forcing someone to take a breath test was unconstitutional, a lot further.

Elliot, written by Justice Nels Petersen, said Georgia’s Constitution actually goes beyond the U.S. Constitution’s guarantee against being forced to testify against oneself. “Based on the well-established meaning given to the constitutional right against compelled self-incrimination and carried forward into subsequent state constitutions, we concluded that a breath test is an act incriminating in nature and, therefore, Paragraph XVI prohibits the State from compelling such a test,” according to the opinion.

Such evidence may not be introduced in a criminal trial. However, a blood or urine test can still be obtained if an officer gets a search warrant.

PAC Executive Director and former District Attorney for the Coweta Judicial Circuit, Pete Skandalakis, said prosecutors “respect the opinion of the Supreme Court and will, of course, act accordingly.

“While this decision does change decades of law and the manner in which law enforcement officers enforce the legislative intent of keeping the public safe from impaired drivers, the problem it creates is not insurmountable. Prosecutors will advise officers to read Miranda rights to DUI suspects and request their consent for breath tests, and to obtain search warrants for blood and urine tests when probable cause exists, he said.”

This decision will make enforcing DUI laws more work intensive.

As Skandalakis points out, implied consent is not the only way to obtain chemical tests in DUI cases.

If there is probable cause that a driver is impaired and he or she refused the test, the officer can go to a judge and obtain a search warrant for blood or urine. While this procedure could take longer and awaken sleeping judges, it is now the most effective way for law enforcement to prosecute people charged with DUI. 

Some counties in west Georgia have been using search warrants in DUI cases for years. 

Next year, the General Assembly will likely look at revising the language in the implied consent notice and law. 

This ruling will also likely be the basis for challenging blood and urine samples under the implied consent law.    

As I mention in every DUI column, we all need to be informed when an important law is changed, found unconstitutional, or is enacted. More importantly, we need to keep others and ourselves safe on Georgia roads by being sober drivers.