On Monday morning, a new ruling from Georgia Supreme Court made a major change in the state’s DUI law: police officers can no longer compel drivers to take a breathalyzer test. Previously, according to Georgia case law, officers could compel someone to take a breathalyzer test if they were arrested for driving under the influence. Taking the breathalyzer test before a formal arrest was always voluntary.
With the new unanimous ruling, Olevik v. The State, individuals can refuse the test both before and after their arrest, and this refusal cannot be held against them in court. Georgia justices compared taking a breathalyzer test to making self-incriminating statements. Since the constitution protects defendants from self-incrimination, the court cited this as part of the reasoning for their decision. In addition, the Georgia constitution states that an individual is never “forced to give something, but can be forced to be present while something is taken.” Considering this legal technicality, the justices concluded that breathalyzer tests do in fact require suspects to “give” their breath, rendering the tests unconstitutional.
Now, officers must provide suspects with what’s known as an “implied consent warning.” This notifies the individual that they have the right to refuse the breathalyzer test, and discloses the consequences of refusing the test. These consequences can include a one-year license suspension, among other punishments.
Now that individuals cannot be compelled to take the test, it will be more challenging, at least in one aspect, to defend DUI suspects in court. Before, if a client was compelled to take the test and their attorney got their breathalyzer results excluded for that reason, it aided their defense. Now, suspects who submit to the test will most likely see their results as admissible evidence in their case.
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