The Fate Of Georgia's Roadside Breathalyzer Test

By Britni de la Cretaz 10/20/17

A new ruling will change how DUI cases are prosecuted in the state.

Image: 
Driver being subjected to breathalyzer test.

In Georgia, police officers can no longer force motorists suspected of driving under the influence of alcohol to submit to a roadside breathalyzer test. In a ruling that overturned a previous decision from 2000, the Supreme Court of Georgia declared that under the Georgia constitution, drivers have the right to refuse a breath test.

According to 11alive.com, the high court wrote: "The state constitution’s protection against compelled self-incrimination applies not only to testimony but also to acts that generate incriminating evidence." Previously, anyone driving in Georgia was considered to have given “implied consent” to a breath test if asked by law enforcement to take one.

Implied consent means that if you are lawfully arrested by an officer with probable cause to believe you have been driving while intoxicated, you automatically consent to a blood, breath, or urine test to determine your blood alcohol content (BAC). Upon arrest, the officer is required to read an implied consent notice that informs the driver that, should they refuse the test, their license will be suspended for a year and their refusal can be used against them in court.

As the Washington Post outlines, what this ruling does is argue that a person’s right against self-incrimination protects them from being compelled to take a roadside breath test, as people can’t be forced to incriminate themselves.

The ruling in the case of Olevik v. State reads, “The Georgia Constitution provides that ‘[n]o person shall be compelled to give testimony tending in any manner to be self-incriminating’” in a paragraph referred to as “Paragraph XVI” throughout the ruling. It goes on to say that while the State’s argument for compelling a breath test claims that it is not a violation of the self-incrimination clause because “a breath test only captures a ‘substance’ naturally excreted by the human body,” it cites the fact that urine collection doesn’t violate this right.

However, the court disagreed, explaining, “[F]or the State to be able to test an individual’s breath for alcohol content, it is required that the defendant cooperate by performing an act. Compelling a defendant to perform an act that is incriminating in nature is precisely what Paragraph XVI prohibits.”

The implications of this ruling will likely not be immediately clear. The new ruling will also change how DUI cases are prosecuted, as a defendant's refusal to take a breathalyzer test can no longer be used as evidence against them in a trial.

In 2016, the U.S. Supreme Court ruled that warrants were required for blood tests, but not for breathalyzers.

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Britni de la Cretaz is a freelance writer, baseball enthusiast, and recovered alcoholic living in Boston. Follow her on Twitter at @britnidlc.

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