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Georgia Supreme Court knocks the wind out of breathalyzers

On Behalf of | Jul 26, 2019 | Firm News |

Early this year, the Georgia Supreme Court caught almost everyone by surprise by declaring unconstitutional an aspect of DUI stops in the state. Police, prosecutors and even medical facilities scrambled to respond.

State legislators hoped to patch the law to partly restore the status quo, but it looks like the Supreme Court’s ruling will remain the last word until next year, and perhaps for a long time after.

Athens woman refuses to incriminate herself

In a sense, it all started in 2015 when a young woman was pulled over in Clarke County on suspicion of DUI. She was very cooperative until the officer asked her to take a breathalyzer test. When he read Georgia’s “implied consent notice” as required, she refused any more testing. The text warns that a drivers’ refusal to be teste “may be offered into evidence against you at trial.”

The Supreme Court heard arguments that Georgians have a right to refuse self-incrimination, and a right that you can’t use is not a right. Taking a breathalyzer can incriminate you, as can refusing, it was argued. The Georgia Supreme Court agreed.

The ruling applied only to breathalyzers, not to urine or blood tests. As a result, police departments and district attorneys across Georgia prepared to be inundated with authorizations for blood and urine tests, which in some areas of the state can only be done in local medical facilities.

Putting the pieces back together

Georgia legislators had hoped to quickly draft a fix to state law, providing a new text for the “implied consent” statement. By no longer warning a refusal could be used against you, lawmakers hoped to satisfy the Court while also allowing breath testing to resume more or less as it had before.

It couldn’t be done in time. But breath tests will continue even without the old warning. Besides, refusing a breathalyzer is still a violation of the rules of the Department of Motor Services.

There’s also discussion of changing Georgia’s constitution to restore the status quo. Whether two-thirds of Georgia’s House, two-thirds of its Senate, a majority of its voters would vote for forced self-incrimination is currently unclear.