Is refusing a breathalyzer test against the law in Georgia?

This article looks at a recent Georgia Supreme Court ruling on the constitutionality of breathalyzer refusals.

The Fifth Amendment of the United States Constitution protects people from being compelled to give self-incriminating communications or testimony. As the Washington Post reports, the U.S. Supreme Court, in an important 1996 decision, ruled that the Fifth Amendment does not protect individuals from facing criminal charges if they refuse a breathalyzer test. However, in Georgia, the situation is somewhat different, due to a recent Georgia Supreme Court decision that interprets the state's constitutional protections against self-incrimination somewhat differently.

U.S. Constitution vs. the Georgia Constitution

In its 1995 decision, Schermber v. California, the U.S. Supreme Court ruled that while the Fifth Amendment prohibits compelling people to give self-incriminating "communications" or "testimony," it does not protect people from criminal charges if they refuse a breathalyzer test. That's because a breathalyzer test is not a form of testimony or communication, but rather makes the suspect the source of "of real or physical evidence."

The Georgia Constitution also protects individuals against self-incrimination, but it does so in a way that is slightly different from the U.S. Constitution. The state's constitution says that "no person shall be compelled to give testimony tending in any manner to be self-incriminating." That more broadly worded protection has important implications for DUI laws in Georgia.

Georgia Supreme Court weighs in

Last year, in Olevik v. State, the Georgia Supreme Court weighed in on the issue. The court ruled that the Georgia Constitution does indeed protect people from being compelled to submit to a breathalyzer test, the results of which could then be used against them in a criminal case. In other words, if a person refuses to submit to a breathalyzer test, then that refusal can no longer be used against that person in a criminal court case. The case overturns a previous Georgia Supreme Court ruling that was more in line with Schermber v. California.

However, as WABE News reports, it is important to understand that there are still potential consequences for refusing a breathalyzer test. While a breathalyzer refusal alone will not result in criminal charges, it could result in civil penalties, such as a license suspension. Furthermore, the police do have other tools for determining whether or not an individual is driving while intoxicated, including potentially getting a search warrant in order to conduct a blood or urine draw on the suspect.

Criminal defense help

In other words, refusing a breathalyzer test alone is no guarantee that one is out of legal trouble. Anybody facing DUI or similar charges should contact a criminal defense attorney as soon as possible. An experienced attorney can assist clients with building a strong defense and ensuring that their rights are protected.