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Can Your Refusal to Take a Breath Test Be Used Against You in a Georgia DUI Trial?


Georgia’s “implied consent” law means that if a person suspected of DUI refuses to submit to a blood or breath test, their driver’s license will be automatically suspended regardless of the outcome of any subsequent criminal prosecution. Prior to 2019, a suspect had no legal right to even refuse the breath test. And any refusal could be used as evidence against them in a criminal trial.

In 2019, the Georgia Supreme Court held that part of the implied consent law violated the state constitution. The Supreme Court’s decision in Elliott v. State clarified that forcing a DUI suspect to a chemical breath test was effectively forcing them to commit self-incrimination. Although the U.S. Supreme Court previously declared this was not a violation of the Fifth Amendment, the Georgia Supreme Court said it nevertheless violated Paragraph XVI of the state constitution.

In practical terms, this means that while refusal to submit to a breath test can still lead to an administrative suspension of a Georgia DUI suspect’s driver’s license, a refusal to consent to a test can no longer be introduced as evidence at trial. Put another way, the prosecution cannot tell a jury that the defendant refused to take a breath test. Nor can a jury infer the defendant’s guilt from such a refusal.

Court of Appeals Finds Defendant Was Not “Coerced” Despite Misleading Information

At the same time, Georgia courts continue to struggle with DUI cases where defendants may have consented to a breath test only because they were misled to believe a refusal would be used against them in court. A recent example is Luna-Galacia v. State. In this case, a police officer arrested the defendant for DUI and asked him to submit to a breath test. Those results were later admitted in court and led to the defendant’s conviction of DUI less safe and driving with a suspended license.

At trial, the defendant argued the result of his breath tests should have been suppressed because the officer gave him a “misleading implied consent” notice and that he was effectively coerced into giving consent. The trial court rejected that argument. The Court of Appeals reversed, however, and ordered the trial judge to reconsider based on the Georgia Supreme Court’s decision in Elliott. Even after that reconsideration, the trial court again refused to grant the defendant a new trial. This time, the Court of Appeals affirmed.

The appellate court explained that looking at the “totality of the circumstances,” even if the defendant received a misleading implied consent notice, the encounter between the defendant and the officer was “cordial and non-coercive.” There was therefore no reason to reject the defendant’s consent to the breath test as coerced.

Contact Harris Spizman Trial Attorneys Today

To reiterate, under current Georgia law, you can refuse a breath test following a DUI arrest and your refusal cannot be used as evidence against you in a criminal trial. Of course, you can still face administrative consequences with respect to your driver’s license. A qualified Georgia Board certified DUI lawyer can advise you further with respect to your rights. Contact Hawkins Spizman today to schedule a free consultation. We serve clients throughout Georgia including Atlanta, Dunwoody, Alpharetta, Cobb County, Fulton County, Gwinnett County, Johns Creek and Sandy Springs.


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