Georgia Supreme Court: DUI Suspects Have the Right to Refuse Breath Tests

The United States Constitution provides everyone in the country with certain rights. States have their own constitutions, which can provide people in those jurisdictions with additional—or broader—rights. That dynamic is why, on October 16, Georgia became somewhat of an exception in the realm of DUI law.

Right Against Self-Incrimination

The Fifth Amendment to the U.S. Constitution provides a right against forced self-incrimination. So does Paragraph XVI of the Georgia Constitution. In Olevik v. State, the Georgia Supreme proved that it interprets the state version of that right differently than the U.S. Supreme Court  interprets the federal version.

The U.S. Supreme Court has decided that the Fifth Amendment applies to “testimony”—acts of communication—but not anything else. The Georgia Supreme Court, on the other hand, has determined that Paragraph XVI of its constitution protects people in that state “from being forced to perform acts that generate incriminating evidence.” What that means in DUI cases is the following:

  • Under the U.S. Constitution, it’s okay for a state government to impose criminal penalties for a motorist refusing to blow deep lung air into a breathalyzer after a valid DUI arrest.
  • Under the Georgia Constitution, the state government may not hand out criminal penalties for a breath-test refusal.

New Georgia DUI Rule

Combine the rule from Olevik and a blood-test rule from a 2016 U.S. Supreme Court decision, and you have the following principle in Georgia: A DUI suspect normally cannot receive criminal punishment for refusing either a warrantless blood test or a breath test. Georgians have a constitutional right to refuse to submit to either kind of test.

The wrinkle, though, is that it’s fine for the Georgia government to impose noncriminal penalties for refusing a blood or breath test. Put another way, the state government can still suspend a Georgia DUI suspect’s driver’s license for the act of refusing a chemical test. And, importantly, the standardized warning officers give suspects about agreeing to chemical testing in the Peach State remains valid.