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'It's not a free pass:' Deputy on new Ga. Supreme Court decision about breathalyzer tests

The high court says if you're charged with driving under the influence and refuse a roadside breathalyzer test, prosecutors can't use that against you in a trial.

MACON, Ga. — A new decision from the Georgia Supreme Court says being forced to submit to a roadside breathalyzer test is unconstitutional. 

On Monday, the high court ruled that if you're charged with driving under the influence, and refuse a roadside breathalyzer test, prosecutors can't use that against you in a trial.

The ruling stems from a 2015 DUI case in Athens-Clarke County where police arrested a woman who refused to take a breath test.

Her lawyer argued that using that as evidence against her violates her right against self-incrimination, which is guaranteed under the Georgia Constitution. On Monday, the state's high court agreed.

Now, police and prosecutors are tasked with still protecting public safety.

"When it came down, I thought, 'Well, this is wonderful,'" says Macon DUI lawyer, Ann Parman. "I think it's a correct stating of the law. It's the protection against self-incrimination and that is so important in criminal law and DUI law."

Current Georgia law says that when officers pull over a suspected drunk driver, the driver must submit to chemical tests of blood, breath, urine or other bodily substances. 

If they refuse, their license will be suspended for at least a year, and prosecutors may use their refusal to take the tests as evidence at trial. 

The 'high court' ruled that last line is what's unconstitutional.

"A court, or law enforcement, cannot violate your protection against self-incrimination, and I just think that's a cornerstone of the United States Constitution and the Georgia Constitution," says Parman. 

Lt. Scott Davis with the Bibb County Sheriff's Office traffic division says the change won't stop officers from pulling over suspected drunk drivers.

"We are still going to enforce the DUI law because the law is still on the books. It's against the law to drive impaired," says Davis. "This opinion is not a 'free pass' for the motoring public to say, 'OK, we can beat this now.'"

By e-mail, Bibb County Solicitor General Rebecca Grist says she expects lawmakers will change state law or the state constitution due to the ruling.

I’ve read the opinion and discussed it with my DUI team. Even though this is a very lengthy opinion, it covers only a small portion of DUI cases. First, it only applies to cases where an officer reads implied consent requesting a breath test AND the suspect refuses the test. Going forward, I expect to see officers asking for blood (or urine) in order to avoid this issue. As the Supreme Court pointed out, and even encouraged, the General Assembly will likely be addressing changes to the law and/or Constitution to address the issues raised in this decision. With regard to existing cases, our DUI team is already reviewing the small percentage of open cases where both the officer read for breath and the suspect refused. We will evaluate on a case-by-case basis to see if they are viable, will be reduced or in extreme cases dismissed.

"It is actually finding unconstitutional part of the Georgia DUI law under the Georgia constitution, so I believe they're going to have to go back to the drawing board and rewrite it," says Parman. 

The judges' decision released Monday acknowledged that their ruling may make it harder to prosecute driving under the influence. But they say they had to respect the constitutional right against self-incrimination.

The opinion applies only to a driver's breath test, not blood tests.

It also says refusal to take the breathalyzer cannot be used in criminal  proceedings, but can be used to suspend the driver's license.



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