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Georgia high court: refusal of breathalyzer cannot be used in court
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Georgia high court: refusal of breathalyzer cannot be used in court

The Georgia Supreme Court on Monday ruled that a driver’s refusal of a breathalyzer test cannot be used as evidence against them in a criminal trial.

In Elliot v. State the court unanimously found that a person’s right against self-incrimination under Article I, Section I, Paragraph XVI of the Georgia Constitution prohibits admission in a criminal trial of a person’s refusal to blow into a breathalyzer.

The 91-page opinion admits that the ruling may make it more burdensome to prosecute DUI’s but says the court cannot change the Georgia Constitution, “even if we believe there may be good policy reasons for doing so.”

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 … [but] 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 may have implications for continuing validity of the implied consent notice as applied to breath tests, but it is up the General Assembly to revise such statutes.