The Cook & Tolley Blog

The court can no longer use breathalyzer refusals against you

Suppose you are driving when you see red-and-blue police lights behind you. An officer pulls you over and asks to administer a breathalyzer test. If you refuse, can this be used against you in court?

Although you have the right to refuse a breathalyzer, the State can subsequently arrest you and present your refusal as evidence against you in court. Or, at least, it could until recently. While this practice was once legal, a landmark ruling by the Supreme Court of Georgia has overthrown it. What does this mean for Georgia drivers?

The case that changed everything

The court recently decided the case of Elliott v. State. In 2015, a police officer pulled over the plaintiff on suspicion of driving under the influence of alcohol. When the plaintiff refused to take a breathalyzer test, the officer arrested her. She filed a lawsuit, claiming that the State does not have the right to use her refusal as evidence against her in court.

The Georgia Supreme Court agreed, ruling unanimously that this practice violated the provision of the State Constitution that protects citizens from self-incrimination. In an earlier case called Olevik v. State, the Court ruled that the State cannot force someone to submit to take a chemical breath test.

What does this mean for Georgia drivers?

This decision is a triumph for motorists throughout the state. It means that even if a police officer pulls you over on suspicion of drunk driving, you have the right to refuse a breathalyzer test—and if you are arrested, your refusal cannot be used against you in criminal court. A refusal to take a breath test can, however, count against you in an administrative hearing for a license suspension. In addition, the Elliott ruling does not prevent the police from seeking a warrant from a judge to have your blood tested if the officer suspects you are under the influence.

Remember: Driving drunk is always dumb and dangerous. Do not do it —be safe and smart.

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