DUI Case Law and Updates
William S. Hardman, Jr.
Attorney at Law
Attorney at Law
House Bill 471-Georgia's revised implied consent warning-July 1, 2019-Only your refusal to submit to blood or urine tests may be admissible against you at trial
As of July 1, 2019, Georgia will have a new implied consent notice regarding the test officers ask for after a DUI arrest. .
When officers arrest someone for DUI, they typically proceed to administer roadside field sobriety tests (HGN test, Walk and Turn, One Leg Stand, Portable Breath Test) and if an arrest is made, request a state-administered test to determine a blood alcohol level or the presence of other drugs. Because of the Georgia Supreme Court's holding in Elliott v. State, 824S.E.2d 265 (2019), decided on February 18, 2019, a person's refusal to submit to a breath test cannot be offered into evidence against them at trial. It is important to note that this is not the "portable breath test" that is usually given as part of the field sobriety tests on the side of the road. The portable breath test or "breathalyzer" is only admissible in court to the extent that the officer obtains a positive or negative reading. The portable breath test does indicate a numerical result, but that blood alcohol number/result is not admissible in court.
Refusal to take tests offered at trial
Formally, the Intoxilyzer 9000 (breath testing instrument that is usually administered at the jail or police station) was utilized to get an admissible state breath test after an arrest was made. If the results are .08 grams or more, that is per se DUI in the State of Georgia. Because of the holding in the Elliott case and other cases, the Supreme Court has decided that Georgians do have a Constitutional right to refuse a breath test and that refusal cannot be offered into evidence at their DUI trial. People refuse chemical tests in DUI cases for a variety of reasons-i.e. scared to have a needle stuck in their arm inside of the jail, don't understand what implied consent means (because they are not lawyers and are hearing this warning for the first time ever), etc. The problem is that a jury may infer that the reason someone refused a test is "because they were drunk."
Now, because of the rulings in recent cases, police officers in Georgia are no longer requesting breath tests after they make DUI arrests. The officers either request a blood or urine test. If you refuse either of those tests, your refusal to submit may be offered into evidence against you at trial.