A new dui law in GA?This October, the Georgia Supreme Court ruled on a case that could change DUI law in Olevik v. State, S17A0738 (2017). In this case, the state’s highest court made a ruling that will affect how the refusal of a Breathalyzer test is used in court. In the past, the State has used Breathalyzer refusals as incriminating evidence, for the allowed purpose of inferring that if the defendant had taken the test, the results would have been positive for alcohol. This allowable inference, however, had the effect of implying that a person who refuses to take a state-administered breath test would only do so because they know they are actually intoxicated.

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Now, our high court has ruled that a defendant’s right to refuse is no longer only a statutory right (it is legal to refuse the test) but is also a constitutional right (it is a protected action.) Unlike the U.S. Constitution’s protection against self-incrimination, which only protects incriminating evidence that is testimonial, the Georgia Constitution offers more expansive protection when it comes to the right to remain silent by covering evidence that is both testimonial and real. Our courts have ruled that “real” evidence includes “acts.” This means that under our state constitution, a person cannot be compelled to do any act that might provide incriminating evidence to the state. The State Supreme Court ruled that giving a breath test is an act, and therefore a protected right for a person to refuse the state breath test. The implication of this is that DUI Defense attorneys will now try to suppress refusals as evidence from trial under the recognized argument that the State cannot comment on or use someone’s right to remain silent against them at trial.

In another recent case, State v. Council, A17A1218 (2017). the Court of Appeals of Georgia emphasized the significance of the Olevik ruling by stating, “a compelled breath test falls under the Georgia Constitutional right against self-incrimination, which protects individuals from having the results of a compelled breath test, or their refusal to submit to such testing, admitted against them in any criminal proceeding.”

The case is brand new and the argument for DUI defense lawyers will likely take shape over time, but at this point, it is clear that it will be a huge shift in favor of defending DUI cases. Could this lead to new DUI law in GA?

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