Court strikes down part of state’s DUI law

Court: Using breath test refusal at trial violates self-incrimination right.

The Georgia Supreme Court on Monday struck down a portion of the state’s DUI law, ruling that a driver’s refusal to take a breathalyzer test cannot be held against them in criminal court.

The impact was immediate. Hours after the unanimous decision, prosecutors told police they should prepare to seek more warrants for blood and urine tests in order to combat drunk driving. Such a process could be cumbersome, especially in some rural areas of the state, law enforcement officials said. The state Legislature likely will try to rewrite the law to address the court’s concerns.

The justices found that using a driver’s refusal to submit to a breath test against them at trial

violates the Georgia Constitution’s protections against self-incrimination. They also affirmed a previous ruling that said it’s unconstitutional to force drivers to take the breath tests.

“We acknowledge that the State has a considerable interest in prosecuting DUI offenses (and thereby deterring others), and that our decision today may make that task more difficult,” Justice Nels S.D. Peterson wrote in the opinion. “This Court cannot change the Georgia Constitution, even if we believe there may be good policy reasons for doing so; only the General Assembly and the people of Georgia may do that. And this Court cannot rewrite statutes.”

Under the new ruling, when a driver won’t use a breathalyzer, police will instead need to get a warrant to take blood or urine tests, which must be performed at appropriate medical facilities, said Pete Skandalakis, executive director of the Prosecuting Attorneys’ Council of Georgia. The impact will vary from place to place. In some counties, jails have workers who can do the tests. In others, cops will take drivers to a hospital. In some places, officers are set up to get warrants electronically. In other counties, cops may end up knocking on the doors of judges’ homes in the middle of the night to get a warrant to complete their traffic stops.

“Law enforcement is just going to have to change their procedures. If you’ve been in law enforcement or prosecution a long time, you understand these things happen,” Skandalakis told The Atlanta Journal-Constitution. “I know law enforcement will do their job.”

DUI enforcement is often complicated by drivers declining to use breath tests. Records from the state office of drivers services show the number of residents whose licenses were suspended for refusing to take the test was more than 11,000 in 2017. The number of DUI convictions was nearly 23,000.

The high court’s decision comes as a driver challenges a pending DUI case in Clarke County.

In August 2015, an officer with Athens-Clarke County Police pulled Andrea Elliot over after allegedly seeing her commit several traffic violations, including failing to maintain a lane. Elliot admitted she’d had alcohol earlier in the day. The officer, allegedly smelling booze and seeing signs of impairment, arrested her and read her Georgia’s so-called “implied consent notice.” The notice lets a driver know his or her refusal to submit to testing “may be offered into evidence against you at trial.” She refused.

Her attorney, Greg Willis, submitted a motion in Clarke County, arguing that using the refusal at trial would be unconstitutional. The local court ruled against him and he appealed to the state’s highest court.

Willis framed Monday’s victory as one not just for his client but for all Georgians’ rights against self-incrimination.

“What kind of right is it if you cannot exercise it?” he told the AJC. “I think it’s plain and simple, black letter law.”

Because the implied consent notice must now be rewritten, Skandalakis said the Prosecuting Attorneys’ Council of Georgia is recommending police stop using it altogether. Instead, the council recommends officers read drivers’ their Miranda rights and then ask if they’ll take a breath test. If that doesn’t work, the officer should get a warrant to obtain blood or urine, the council said in a memo sent to prosecutors across the state on Monday.

By taking up the case, the court was agreeing to consider whether it had correctly decided a 2017 ruling that said drivers can’t be forced to submit to breath tests. In Monday’s decision, the justices stood by the previous ruling, saying forcing a person to take a breath test constitutes forcing them to conduct a potentially incriminating act.

The ruling doesn’t apply to blood or urine, essentially because a blood or urine test doesn’t require a driver to perform an action — such as blowing firmly into the breathalyzer — and instead only requires the person to allow their blood or urine drawn, according to the Prosecuting Attorneys’ Council of Georgia.

Dwayne Orrick, assistant executive director of the Georgia Association of Chiefs of Police, said the ruling will make things more difficult for officers, particularly in rural areas where getting a warrant can take longer. Orrick, who’s worked in the South Georgia city of Cordele and in Roswell, said it might take up to three hours in the country to get blood from a suspect, time during which the suspect’s body is metabolizing alcohol.

But even so, he expects officers to adjust and continue documenting other evidence needed for a prosecution: how the suspect drives, behaves, speaks, etc. In his experience, it has always been a good idea to build a case without relying solely on a breath test.

In Athens-Clarke County, Solicitor C.R. Chisholm, whose office was on the losing end of Monday’s ruling, is recommending officers ditch breath tests altogether, at least until the law is clarified. Instead, he’s asking officers in the county to seek blood samples in all DUI investigations.

“We knew if the decision was not in our favor we would have to go this route,” he told the AJC.

He said his understanding was that Athens-Clarke County Police would be taking the recommendation. It wasn’t yet clear how Georgia State Patrol troopers, who patrol the county as well as the rest of Georgia, would respond to the ruling.

But there was much uncertainty Monday.

Would the ruling lead to people who’d been convicted of DUI to appeal? Perhaps, said Skandalakis, though he thought that could be a tough row to hoe if the defendant hadn’t brought up implied consent during their prosecution.

Would the ruling affect pending prosecutions? Marietta attorney Kim Keheley Frye said she expected the ruling to touch “every single” pending case and “severely limit” prosecutors and “refusal cases.”

Justice Michael P. Boggs said the decision would not prevent refusal to take a breath test from being used in an “administrative” proceeding to suspend a person’s license. But, he added, because the ruling’s implications will be vast, legislators may still want to tweak the law to make sure it has the effects desired.

It wasn’t clear if lawmakers would try to change the law or embark on a push to change the state constitution, though they theoretically would still have time in the current legislative session. Gov. Brian Kemp told Channel 2 Action News his office would be talking to state legislators “in the coming days to get a game plan and see exactly what’s going to be needed.”

Skandalakis said he didn’t expect an appeal of the ruling because the state high court is the authority on interpreting the state constitution.