Georgia Supreme Court Clarifies the Rights of Drivers Suspected of DUI

This past fall, the Georgia Supreme Court issued some “clarifications” regarding the rights those suspected of DUI have, most specifically as those rights relate to Georgia’s implied consent law, as well as the interactions DUI suspects have with police officers. What came through loud and clear from the Supreme Court is that police officers may not force DUI suspects to take a breathalyzer test, and, perhaps even more importantly, such a refusal cannot be used in court as evidence of guilt. Until this decision by the Supreme Court, a defendant’s breathalyzer refusal could be submitted against the defendant as evidence of guilt during the trial. In fact, the Supreme Court found that “the state constitution’s protection against compelled self-incrimination applies not only to testimony, but also to acts that generate incriminating evidence.”

Gwinnett County Case Has Bearing on Supreme Court’s Decision

Prior decisions which did not allow a DUI suspect to lawfully refuse a breathalyzer test were effectively overturned, as the court referred to a 2015 Gwinnett County case. In that case, the driver was stopped for having both tail lights out, as well as failing to maintain his lane. The arresting officer claimed the suspect had slurred speech, bloodshot eyes, and that there was a strong odor of alcohol emanating from the suspect. The suspect was ordered to blow into a portable breath testing machine on the side of the road. According to the defendant, he was told by the police officer that the portable breathalyzer was not the same as the state-administered breathalyzer test, therefore he agreed to take the breath test.

Police Interaction with DUI Suspects Scrutinized

After blowing a .113 BAC in the handheld breath tester, an arrest was made, and the suspect, Frederick Olevik, was subsequently convicted of DUI. Olevik’s attorney filed an appeal, claiming the implied consent notice read to Olevik by the police officer was not only filled with misleading language, it also violated his rights—under the state constitution—against compelled self-incrimination.  The Georgia Supreme Court rejected Olevik’s claim that the language was misleading or coercive, however did end up overturning decades of Georgia Supreme Court opinions on the use of breathalyzer refusals in a DUI court. And, while Olevik’s conviction was not overturned, many believe the case will alter the manner in which police interact with DUI suspects, to avoid a court finding the breathalyzer test was forced, rather than offered.

Should You Refuse a Georgia Breathalyzer Test?

In the state of Georgia, you absolutely can refuse the roadside breathalyzer test, however if you refuse a chemical test once you are at the police station, you could face additional penalties for that refusal. Once you refuse a chemical test, your driver’s license will be confiscated by the police officer, and you will be issued a 30-day permit. If you fail to request an administrative hearing to challenge the suspension, your license will be automatically revoked for a year. For each subsequent refusal, the length of your license suspension will increase—three years for a second refusal and five years for a third refusal.

Contesting Your License Suspension

If you schedule an administrative hearing within 30 days of the date of your DUI arrest and license revocation, you will have the opportunity to contest the pending suspension and fight for reinstatement of your driving privileges. In some cases, when a month has passed, after your suspension, you may also be able to complete an alcohol and drug-use risk reduction program, paying a $210 fee, in order to have your driver’s license reinstated. If this is your second refusal, you would be required to wait 18 months to apply for such a reinstatement, and for a third refusal, the waiting period for a reinstatement application would also be 18 months, however even if the application was granted, you would only receive a probationary license.

Getting Legal Help for Your Georgia DUI Charges

While you can refuse a breathalyzer test, this does not necessarily mean you will not still be convicted of DUI. The very best course of action you can take after being arrested and charged with a DUI is to contact an experienced, results-driven DUI criminal defense attorney like Melanie Ellwanger. Melanie is dedicated to helping her clients achieve the very best outcome possible, then move on with their lives. Contact Melanie 24/7 at 404-803-3105 or melanie@hiremelaw.com.