Article I, Section I, Paragraph XVI of the Georgia Constitution reads in its entirety: “No person shall be compelled to give testimony tending in any manner to be self-incriminating.” This provision first appeared in Georgia’s Constitution in 1877 and remains current through the present 1983 Constitution that governs us.
Today, the Supreme Court of Georgia applied that divine Constitutional provision to the refusal of DUI breath test thus dealing a blow to DUI prosecutors across the State of Georgia. The opinion, authored by Justice Nels S.D. Peterson, is almost 100 pages long and can be found here.
Georgia Constitution v. United States Constitution
One of the more interesting things in the law, particularly in Georgia, is that the State constitution and the US Constitution can yield different results despite the same set of facts. The US Constitution is a baseline of protections, but the Georgia Constitution can certainly provide greater protections to Georgians.
Relevant here, the Supreme Court of the United States (SCOTUS) has held that the Fifth Amendment to the US Constitution does not find a right for folks to refuse to submit to breath tests. Georgia’s Supreme Court (SCOGA) has, however, held that our state constitution does permit driver’s under DUI investigation to refuse a breath test as an exercise of their right against self-incrimination.
Until this point Georgia law has permitted the government (through its prosecutors) to use the refusal of a breath test against you at a trial. Today, SCOGA ruled that such evidence is a violation of the Georgia constitution and that evidence of your refusal in no longer admissible at trial.
Is a Breath Test “Testimony” under the GA Constitution?
The long story short is yes. Paragraph XVI of the Georgia Constitution covers affirmative acts, such as a chemical breath test during a DUI investigation. Again, paragraph XVI reads “No person shall be compelled to give testimony tending in any manner to be self-incriminating.” The idea is that you cannot be forced to incriminate yourself; and Georgia courts have established that this right protects you from compelled affirmative actions like a breath test.
Today SCOGA further explained the rights Georgian’s are afforded. They ruled that using your refusal against you would violate your right against self-incrimination.
How do Prosecutor’s Feel?
Well, I certainly have not interviewed them for this blog post and I will not point to any specific examples, but their response on various media platforms has been negative. This decision certainly dealt a blow to DUI prosecutions as their job has now become more difficult (I firmly believe that putting people in jail should not be an “easy” task).
Additionally, the State Government made numerous creative arguments to prevent this exact ruling. SCOGA, however, pointed out “that the State fail[s] to appreciate the constitutional nature of the right at issue.” Essentially, the government missed the point.
The state had argued Georgia’s statutory law, general criminal law principles, and policy concerns were in their favor and that the fact that you refuse should be admissible. This case wasn’t about those things. This case was about the Constitutional RIGHTS that you have.
What Happens Going Forward?
In the immediate future if you refuse, or have refused, a DUI breath test, that refusal will not be admissible against you at trial. So, no BAC levels for prosecutors to use against you at trial and no evidence you refused at trial.
It is incredibly important to remember that if you refuse you still face a 12 month license suspension. So, while this opinion goes to great lengths to protect you in a criminal case, it does very little to protect your license from being administratively suspended.
Additionally, the Georgia legislature will likely have to amend the implied consent statute (for another blog post) as a result of this ruling. Perhaps we may even see a push (a push I would certainly oppose) to amend the Georgia Constitution in a way that would allow for evidence of a refusal to be admissible at trial.
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Author Bio
J. Ryan Brown
Founder
Ryan Brown is a Georgia criminal defense lawyer and trial attorney dedicated to defending the accused in Newnan and across the state. A graduate of Georgia State University College of Law, he has argued cases in Georgia Superior Courts, the Court of Appeals, and the Georgia Supreme Court. His memberships in the Georgia Association of Criminal Defense Lawyers and the Bleckley Inn of Court reflect his standing in the legal community.
Known for his relentless approach, Ryan is committed to protecting clients from the full power of the State. He builds strategic, fact-driven defenses designed to secure the best possible outcome, no matter the charge. When your future is on the line, Ryan Brown has the skill, experience, and determination to fight for you in court.
