Legalese — New Implied Consent Law

In the legal community, there has been much buzz lately about the case Elliott v. The State, which came out of the Georgia Supreme Court on February 18, 2019.  If you really want to read all 91 pages, you are welcome to do so by clicking here.  This case is getting a lot of buzz because it talks about the consequences for refusing implied consent if you are stopped for driving under the influence on Georgia roads.

Let me back up.

Georgia has an “implied consent” law.  This law says that if you have a Georgia driver’s license, then you are agreeing that if there is probable cause for a police officer to believe that you are driving under the influence of drugs or alcohol, then there is an implication that you are consenting for your blood, breath, urine or other bodily substance to be tested for the presence of drugs or alcohol.  If you refuse to submit to testing, your driver’s license can be suspended for a minimum of a year.  Up until the Elliot case, your refusal to submit to the testing could be used against you at trial, if you decided to have a trial.

It’s the trial part that Elliot changed in my reading of all 91 pages (plus 3 more of a concurring opinion.)  The Georgia Supreme Court makes a big point of distinguishing between the Fifth Amendment right against incriminating yourself in the United States Constitution and Paragraph XVI of the Georgia Constitution, and comes to the conclusion that the Georgia Constitution provides more protection than the U.S. constitution does. This decision is based entirely on the Georgia Constitution and not the 5^th Amendment, which is an important distinction if you’re a legal nerd, not the least of which is because it limits the ability to appeal this case to the United States Supreme Court.

In any event, without getting too bogged down into the legal hair-splitting that occurs in this novella, the conclusion is that the refusal to blow into an Intoxilyzer machine is an affirmative act, and, under the Georgia Constitution, an affirmative act is the same as testimony, and you can’t be forced to testify against yourself.  So, if evidence of your refusal is presented at trial, it is the same as you testifying against yourself, which you can’t be forced to do, so that evidence can’t be brought forth in a criminal trial.

All of which is not to say that it couldn’t be brought forth at an administrative hearing about your driver’s license suspension or anything like that, so you still need to consider whether the very real chance of losing your driver’s license is worth it in deciding whether or not to blow into the Intoxilyzer.

How much this changes as a practical matter is yet to be borne out, since I am writing this only a few days after the decision has come out.  I would guess that it wouldn’t really change all that much, although the wording of the implied consent that police officer’s read to you will have to be changed.   In all my years as a prosecutor and a judge I have never seen a DUI prosecuted or convicted on the strength of a refusal.  There is always something else – the smell of alcohol, driving erratically, being unsteady on one’s feet, bloodshot eyes, slurring words, etc.

Of course, the best way to avoid a DUI conviction is to avoid drinking and driving.  That’s also the best way to get home safely, keep your friends and neighbors safe, and be a good citizen, as well as not have to worry about what the case law has to say about it.

Nothing in this article should be construed as legal advice.  It is being offered for informational purposes only.