The Implications of The Elliott Decision For Georgia DUI Law

Posted by Richard Lawson | Feb 19, 2019 | 0 Comments

The Supreme Court of Georgia has made an important decision regarding the State's use of a person's refusal to submit to a DUI breath test as evidence in that person's DUI trial. Elliott v. State, originally a 2015 Georgia DUI case, made it before the Supreme Court of Georgia.

In an unanimous opinion, the Court held that when a person refuses to submit to a chemical test, the fact that they refused testing cannot be used against the accused at trial.  A person always has had the right to refuse testing but before the Elliott decision, the state was able to use the refusal to create a presumption that a person knew they were impaired.  Prosecutors were able to comment on a person's motive to refuse testing. Judges even instructed juries that they could presume a person knew they were impaired, and as a result, they knew to refuse a chemical test. The Supreme Court of Georgia has now ruled that since a person has a constitutional right to refuse testing (as a result of a person's right against self-incrimination) that it would be unconstitutional for the government to comment of the exercise of that right.

To understand the implications of their decision, it is important to review the history of our Georgia DUI Laws.

Before the Elliott Decision

In Georgia, we have some of the strictest DUI laws in the country. According to the Georgia Code, DUI in Georgia is defined in O.C.G.A. §40-6-391 as:

A person shall not drive or be in actual physical control of any moving vehicle while:

(1) Under the influence of alcohol to the extent that it is less safe for the person to drive;

(2) Under the influence of any drug to the extent that it is less safe for the person to drive;

(3) Under the intentional influence of any glue, aerosol, or other toxic vapor to the extent that it is less safe for the person to drive;

(4) Under the combined influence of any two or more of the substances specified in paragraphs (1) through (3) of this subsection to the extent that it is less safe for the person to drive;

(5) The person's alcohol concentration is 0.08 grams or more at any time within three hours after such driving or being in actual physical control from alcohol consumed before such driving or being in actual physical control ended; or

(6) Subject to the provisions of subsection (b) of this Code section, there is any amount of marijuana or a controlled substance, as defined in Code Section 16-13-21, present in the person's blood or urine, or both, including the metabolites and derivatives of each or both without regard to whether or not any alcohol is present in the person's breath or blood.

When a person was arrested for a DUI, a police officer would read the Georgia Implied Consent Notice:

Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver's license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.08 grams or more, your Georgia driver's license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your (designate which tests) under the implied consent law?

As mentioned above, when a driver refused testing (which was always a right), the evidence of that refusal could be brought against them in court. The prosecution used the evidence of a refusal to “prove” or “demonstrate” that the driver was guilty of DUI.  It essentially created what some argued was a “consciousness of guilt.”  It was incredibly powerful evidence against the accused DUI Driver.

The Supreme Court of Georgia's holding on Monday has completely changed that. The Georgia Implied Consent Notice is legally deficient and unconstitutional where it states that a refusal can be uses against someone in the trial of their case. Interestingly, it should have been declared unconstitutional the moment it was written. There never has been a right granted to anyone that can be then used against someone as a result of it being exercised.

Elliott v. State

In the Elliott decision, the Georgia Supreme Court held that a person has a right to refuse a chemical test and that such refusal cannot be used to presume anything against the accused. The implications are vast and will take years to fully be understood.

To begin with, the Georgia Implied Consent Notice will have to be amended. Until such time that the General Assembly re-writes the statute that controls the warning, Georgia Police Officers are unlikely to continue to read it (since it's legally deficient). 

More likely, Georgia police officers will read Miranda to those suspected of DUI and then request a chemical test.  In the event of a refusal, police officer can still seek a warrant for a blood test.

The second implication of the Elliott decision is that for a breath test to be considered admissible against someone at trial, the court will have to perform an analysis if the accused voluntarily submitted to testing or was coerced. 

Before Elliott, a breath test was presumed to have been given voluntarily if a person was read the implied consent warning.  Now, a trial judge must look at every case individually to determine if a chemical test was provided voluntarily. 

Furthermore, if police officers stop reading implied consent, they will not be able to take a person's license and issue the DDS-1205 form that starts the process of suspending a person's license administratively. It's a choice between having a suspension for the refusal to test (after reading implied consent) or having the test admissible in the criminal court by not reading the defective implied consent notice and simply getting a warrant for a person's blood. The moment the current implied consent notice is read, the misstatement of law insofar as the refusal is concerned causes any chemical test given to be inadmissible in court. 

Clearly, police officers will be trained to preserve the chemical test for trial resulting in the temporary death of the Georgia ALS Hearing.

Why Temporary?

The General Assembly will propose constitutional amendments to “fix” all of this as soon as next year.  I sarcastically say the word “fix” because the referendum will be titled something to the effect of “An Amendment to the Georgia Constitution to Crack Down on Drunk Driving in Georgia and to Close Loopholes that Allowed Suspected DUI Drivers to Avoid Chemical Testing.”

In Summary

So, as a Georgia DUI Attorney, let me clear up the decision held by the Supreme Court of Georgia this past week:

  1. You have a right to refuse to submit to testing.
  2. The use of a refusal as evidence against a driver charged with DUI is not allowed.
  3. The reading of the implied consent notice in a DUI trial involving a refusal is out and as a result ALS is temporarily dead.
  4. Breath-testing is now subject to be challenged if the state cannot show that a test was provided voluntarily.

Practice Note

One thing this decision shows is that hiring a qualified Georgia DUI Lawyer is essential. There are always potential legal and factual defenses to your DUI case in Georgia. 

That being said, your case will not defend itself, and Georgia DUI Penalties are life-altering.  Call now for our help!

About the Author

Richard Lawson

Managing Partner at Lawson & Berry:


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