Recently the Georgia Supreme Court in State v. Elliott addressed the issue of whether the State in a prosecution for driving under the influence (DUI) can use your refusal to submit to the state-administered breath test against you at trial. Note: this is different from a roadside breath sample.
The Supreme Court reaffirmed you have a Constitutional right to refuse the state breath test and that refusal cannot be used against you at trial. I have seen many reactions to this decision. These reactions range from defense attorneys hailing it as making DUI prosecution impossible to prosecutors trying to downplay the effects. Even different trial courts have interpreted the decision differently.
The truth, as it usually is, is more likely somewhere in the middle. The decision by the Supreme Court, while very important when reaffirming a Constitutional right, is also limited. Most important to not is this decision likely only applies to breath tests. It may not apply to blood tests if the Supreme Court determines blood tests do not fall under the same Constitutional provisions as the breath test. The Supreme Court did not directly address this issue in the Elliott decision. However, this may show a larger shift coming in DUI law that will continue to reaffirm your right to refuse and not having that refusal used against you.
It’s important to remember that, no matter the decisions of the courts in the future, you have an ABSOLUTE right to refuse ALL field sobriety evaluations and the state-administered test. If you’ve been arrested for DUI call Star Law today and let me be your advocate and make sure your rights are protected at all stages of the criminal justice process.