Georgia Implied Consent

Georgia’s implied consent law was recently challenged—successfully. A Georgia woman, Andrea Elliott, was prosecuted for DUI. When arrested, Elliott refused a breathalyzer test. Under Georgia law at that time, the state was allowed to use the refusal against Elliott at her criminal trial. In fact, the United States Supreme Court has held that the Fifth Amendment to the Constitution does not bar the State from using a refusal against a defendant, since the Fifth Amendment gives suspects the right to refuse in the first place. Contrarily, the Georgia Supreme Court previously held that protection against compelled self-incrimination doesallow a DUI suspect the right to refuse a breathalyzer test. 

On her appeal, Elliott’s attorney argued that under the Georgia Constitution, Article I, Section I, Paragraph XVI, Elliott was given the protection that the Fifth Amendment of the U.S. Constitution did not give her. The Georgia Supreme Court agreed, ruling it unconstitutional to admit evidence of refusal of a breathalyzer test to be admitted at a criminal DUI trial. In short, Georgia’s Implied Consent Law is Unconstitutional under Paragraph 16 of the Georgia Constitution. 

Other Consequences for Refusal Still Exist

It is important to note that a person who refuses to submit to a breathalyzer test when stopped on suspicion of DUI may still face a twelve-month suspension of his or her Georgia driver’s license andthe arresting officer has the right to seek a judicial search warrant (under limited circumstances) which gives permission to draw blood from the DUI suspect. What the Georgia Supreme Court’s decision means is that the DUI refusal may not be used as evidence against the suspect at his or her criminal trial. Prior to this decision, the state of Georgia could use a refusal during the DUI trial as evidence of guilt (i.e., the person would have submitted to the breathalyzer if he or she were not impaired, therefore the refusal demonstrates consciousness of guilt). 

Could License Sanctions for Breathalyzer Refusal Be Challenged in the Future?

The decision to block the use of a breathalyzer refusal as evidence in a DUI trial has truly rocked the Georgia defense world. Citizens in the state may now make the decisions to: 1) refuse the voluntary field sobriety tests, 2) refuse to self-incriminate by talking to the police, and 3) refuse a breathalyzer test—all of which may help a DUI attorney overcome Georgia DUI charges. It may also follow that if the language of the implied consent laws in Georgia are deficient, the sanctions regarding license suspension for a refusal could potentially be challenged as well. 

Georgia Blood Draws Not Allowed Unless Clear Evidence of Drug Use or Other Exigent Circumstances Exist

Under the current implied consent law in the state of Georgia, the arresting officer has a choice regarding which chemical test is conducted following a DUI arrest. Typically, a suspected drunk or stoned driver is asked to submit to testing of breath, blood or urine—or possibly all three. That being said, if an officer onlyhas reason to suspect alcohol as the impairing substance, he or she is usually barred from seeking an invasive blood draw unless there is clear evidence of drug use or other exigent circumstances. 

Charged with a Georgia DUI? Get the Legal Help You Need as Quickly as Possible  

If you have been charged with a Georgia DUI—whether you submitted to a breathalyzer test or not—it is vitally important that you seek experienced legal representation as quickly as possible. The sooner your Georgia DUI attorney can begin fighting your charges, the better chance you have for a positive outcome. Melanie Ellwanger will aggressively defend your rights, your driver’s license, and your future following Georgia DUI charges. Melanie is dedicated to each and every client and will be the advocate in your corner you desperately need during this difficult time. Contact Melanie Ellwanger today at (404) 803-3105 for highly experienced, knowledgeable DUI representation.