Georgia Criminal Defense Blog

How will the Georgia Supreme Court Decision in Elliott Affect the Prosecution of DUI cases in Georgia

Posted by Richard Lawson | Feb 23, 2019 | 0 Comments

The Supreme Court of Georgia has made an important decision regarding the State's use of a person's refusal to submit to a DUI breath test as evidence in that person's DUI trial.

In a unanimous opinion in the case of Elliot v. State, the Court held that when a person refuses to submit to a chemical test, the fact that they refused testing cannot be used against the accused at trial. 

Before this decision, the state was able to use the refusal to create a presumption that a person knew they were impaired.  Prosecutors were able to comment on a person's motive to refuse testing. Judges even instructed juries that they could presume a person knew they were impaired, and as a result, they knew to refuse a chemical test.

Let's take a look at a brief overview of Georgia DUI Laws.

DUI in Georgia

According to the Georgia Code, DUI in Georgia is defined in O.C.G.A. §40-6-391 as:

A person shall not drive or be in actual physical control of any moving vehicle while:

(1) Under the influence of alcohol to the extent that it is less safe for the person to drive;

(2) Under the influence of any drug to the extent that it is less safe for the person to drive;

(3) Under the intentional influence of any glue, aerosol, or other toxic vapor to the extent that it is less safe for the person to drive;

(4) Under the combined influence of any two or more of the substances specified in paragraphs (1) through (3) of this subsection to the extent that it is less safe for the person to drive;

(5) The person's alcohol concentration is 0.08 grams or more at any time within three hours after such driving or being in actual physical control from alcohol consumed before such driving or being in actual physical control ended; or

(6) Subject to the provisions of subsection (b) of this Code section, there is any amount of marijuana or a controlled substance, as defined in Code Section 16-13-21, present in the person's blood or urine, or both, including the metabolites and derivatives of each or both without regard to whether or not any alcohol is present in the person's breath or blood.

When a driver is placed under investigation arrested for a DUI, a police officer reads the Georgia Implied Consent Notice:

Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver's license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.08 grams or more, your Georgia driver's license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your (designate which tests) under the implied consent law?

According to the implied notice, when a driver refused testing, the evidence of that refusal could be brought against them in court. The prosecution will always use the evidence of a refusal to “prove” that the driver was guilty of DUI. This was incredibly powerful evidence against the accused DUI driver.

The Supreme Court of Georgia's holding last week has completely changed the use of that evidence.

The Georgia Implied Consent Notice is legally deficient where it states that a refusal can be uses against someone in the trial of their case. As a Georgia Criminal Defense Lawyer, I should point out that it should have been declared unconstitutional the moment it was written.

There never has been a right granted to anyone that can be then used against someone as a result of it being exercised.

Results of Elliott v. State

In the Elliott, the Georgia Supreme Court held that a person has a right to refuse a chemical test and that such refusal cannot be used to presume anything against the accused. The results of this decision are vast and will take years to fully be understood.

The first result is that the Georgia Implied Consent Notice will have to be amended. Until such time that the General Assembly re-writes the statute that controls the warning, Georgia Police Officers are unlikely to continue to read it (since it's legally deficient). 

The next result is that Georgia police officers will read Miranda to those suspected of DUI and then request a chemical test.  In the event of a refusal, police officer can still seek a warrant for a blood test.

The last result is that for a breath test to be considered admissible against someone at trial, the court will have to perform an analysis if the accused voluntarily submitted to testing or was coerced. 

Before Elliott, a breath test was presumed to have been given voluntarily if a person was read the implied consent warning.  Now, a trial judge must look at every case individually to determine if a chemical test was provided voluntarily. 

Arresting officers will be trained to preserve the chemical test for trial resulting in the temporary ending of the Georgia ALS Hearing.

Practice Note

Let's clear up the results of the decision held by the Supreme Court of Georgia this past week:

  1. You have a right to refuse to submit to testing.
  2. The use of a refusal as evidence against a driver charged with DUI is not allowed.
  3. The reading of the implied consent notice in a DUI trial involving a refusal is out and as a result ALS is temporarily dead.
  4. Breath-testing is now subject to be challenged if the state cannot show that a test was provided voluntarily.

If you or a loved one has been arrested in Georgia, contact a Georgia Criminal Defense Attorney today!

About the Author

Richard Lawson

Managing Partner at Lawson & Berry:


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