Georgia Supreme Court rules on breath-test law

ATLANTA — A driver’s refusal to submit to a breath test cannot be used as evidence in a criminal trial for driving under the influence, Georgia’s Supreme Court ruled Monday, throwing out that part of the state’s DUI laws as unconstitutional.

The high court unanimously agreed the provision violated the Georgia Constitution’s protection against self-incrimination.

Justice Nels S.D. Peterson, in the ruling, acknowledged the Supreme Court’s decision could make it more difficult to prosecute DUI offenses. But Peterson added: “The right to be free from compelled self-incrimination does not wax or wane based on the severity of a defendant’s alleged crimes.”

The decision came in a case where a driver challenged a DUI arrest in Clarke County. Andrea Elliott refused to submit to a breath test when she was arrested in August 2015, and prosecutors sought to use that refusal against her in a criminal trial, according to the Supreme Court ruling.

Her lawyer argued the admission of that evidence at trial would violate her constitutional rights against self-incrimination. A lower court disagreed, and Elliott appealed the decision to the Georgia Supreme Court, which ruled in her favor Monday.

“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,” Peterson wrote in the opinion.

In a concurring opinion, Justice Michael P. Boggs noted the scope of the ruling was limited to circumstances involving a criminal proceeding. He wrote that a driver’s refusal to take a breath test still could be used in an administrative proceeding for a driver’s license suspension.