(Graphic/Whitley Carpenter)

Prosecutors are changing how they approach DUI cases after the Georgia Supreme Court declared a key piece of evidence inadmissible.  

The court ruled that the refusal to submit to a breath test cannot be used against a defendant because it violates protections against self-incrimination.

 Why It’s Newsworthy: This change may make it harder to prosecute DUI cases. Some drunk drivers may escape the consequences of their actions. And it requires prosecutors to alter their approach in building cases against potential DUI suspects. 


How the Case Affects Drivers

When a police officer pulls someone over on suspicion of drunk driving, they will administer field sobriety tests. These include checking the person’s eyes, asking them to walk in a straight line and stand on one leg.

There is also a preliminary breath test that provides a positive or negative reading.

“That test is generally given before someone is arrested for a DUI. Those tests are still admissible evidence,” Athens-Clarke County Assistant Chief Solicitor General Will Fleenor said.  

If the officer has reasonable ground to believe that someone is driving under the influence, they will arrest the driver and read Georgia’s implied consent law.

It states: “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.”

Defendants can refuse this test, but the refusal comes with penalties like a one-year driver’s license suspension.

Before the Georgia State Supreme Court ruling, that refusal also could be used against you in court. Now defendants can exercise their right to refuse the test without worrying that it could be used against them.

“That is a potential piece of evidence that can’t come in,” Fleenor said, “and that will often plant doubt in the mind of many jurors.”

Officers in Athens are asking for blood tests more regularly because it is still admissible evidence in court, Flennor said.

Even though attorneys will re-examine some cases, there are still other factors that attorneys can look at in DUI cases.

Officers can still rely on their observations like a defendant’s driving and the results of the field sobriety tests. 

Elliott v. Georgia

This change in law developed as a result of an appeal in a 2015 DUI case involving Andrea Elliott, then a 26-year-old Athens native.

Prosecutors admitted her refusal to take a breathalyzer test as evidence against her in court. She appealed claiming that she could not be compelled to incriminate herself and the case was filed for later review.

Elliott’s attorney argued that her refusal was justified because it was her right under Paragraph XVI in the Georgia constitution, which states, “No person shall be compelled to give testimony ending in any manner to be self-incriminating.”

In a separate ruling in 2017, the Georgia Supreme Court said that citizens had a state constitutional right to refuse a breathalyzer test.

The timing of this ruling meant the Georgia Supreme Court chose to look at the issues raised in it again.

Effect on Prosecutors

There were 99 breath test refusals in 2018, according to the Georgia Department of Driver Services. This is down from 2017, where there were 125 breath test refusals.

“It’s really a very run of the mill, ordinary DUI refusal other than the fact that it happened to be on appeal at that time, and they had raised that issue [of breath test refusals],” Fleenor said.

“It was the timing of the appeal that was already waiting that made this the case that would decide this issue.”

The resulting change in law has caused Chisholm, Fleenor and other Athens prosecutors to re-examine how they prosecute pending DUI cases.

One of the primary concerns they have now is in making sure juries understand why there may be a lack of test results in certain DUI cases.

Prosecutors used to explain to juries there may not be a breath test because the defendant refused to take it. Now, that’s no longer the case.

“Primarily, what we use breath tests for is not so much to prove the person was impaired, because you can’t actually presume someone was impaired just because they refuse the test, that’s actually in the statute,” Fleenor said.

“We argued that it should be admissible because the jury needs to understand why there was no test. Otherwise, the only thing they would hear is the officer arrested the person and that’s the end of the case.”  

DUIs in Athens

This year’s Georgia Supreme Court ruling came during a time when, according to ACC Solicitor General C.R. Chisholm, DUIs in Athens have been on the decline.  

“We had about 430 DUI cases that came into our office in 2018. That was down from about 10 or 12 years ago when we were receiving anywhere from 1,000 to 1,200,” Chisholm said. “So the number of DUI’s we are seeing in Athens have gone down dramatically over the past few years.”

Chisholm also identified the popularity of ride-sharing services and downtown living as two major contributors in this decline in DUIs.

Future DUI Cases

Aside from drivers, the ruling’s effect on future prosecutors’ cases against alleged drunk drivers is still inconclusive. However, Fleenor does not think that it will have a devastating impact on DUI cases.

“There are still other pieces of evidence so it’s not the end of the world for us,” Fleenor said. “But it is a big piece of evidence because people expect there would be a test and the refusal rule is really just to explain why there’s not a test.”

Jack Austin is a senior majoring in journalism and completing a sports media certificate at the University of Georgia.

Courtney Thompson is a senior journalism major and Spanish minor, completing a New Media Certificate at the University of Georgia.

Zach Shugan is a fourth-year student at the University of Georgia majoring in journalism with a certificate in sports media. 

Iranola Ojuolape is a senior majoring in journalism at the University of Georgia. She is completing minors in sociology and African languages and literatures. 

Whitley Carpenter is a senior majoring in journalism and English at the University of Georgia. 



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