Georgia court: Refused breathalyzer tests can't be used against drivers in trial

The Georgia Supreme Court on Monday delivered a blow to DUI prosecutions, saying a driver’s refusal to have their breath tested for alcohol cannot be used against them at trial.

The high court unanimously found that part of the state’s DUI law violates the U.S. Constitution’s protections against self-incrimination. The ruling sets the stage for a re-write of the law by the state legislators.

“We acknowledge that the State has a considerable interest in prosecuting DUI offenses (and thereby deterring others), and that our decision today may make that task more difficult,” Justice Nels S.D. Peterson wrote in the opinion released Monday morning.

“The right to be free from compelled self-incrimination does not wax or wane based on the severity of a defendant’s alleged crimes.”

The decision comes after a driver challenged a DUI case in Clarke County.

The ruling was big enough that even Gov. Brian Kemp commented on it, saying he wanted to keep Georgia roads safe from DUI drivers.

"I'm sure the legislature is well aware of that now, as we are, and we'll be talking with them in the coming days to get a game plan and see exactly what's going to be needed," Kemp told Channel 2 political reporter Richard Elliot.


Pete Skandalakis, of the Prosecuting Attorneys Council of Georgia, believes this ruling won't stop prosecutors from going after DUI drivers.

"All we need to do is get a search warrant and we then deal with the situation in that way and we’ll analyze the rest of that decision and see where we have to go," Skandalakis told Elliot.

Defense attorney Manny Arora and his firm handle DUI cases. He agrees that prosecutors and law enforcement can get around the ruling with a search warrant.

Arora thinks this ruling will help people who are awaiting trial on DUI charges.

"If your appeals and everything are exhausted, pretty much nothing is going to change. However, if your case is pending or if your appeal is pending, this interpretation could potentially help," he told Elliot.

The ruling only affects what happens in court during a criminal DUI case. The state can still pull your driver’s license if you refuse to take one of those tests since that is an administrative function not a criminal one

Information from The Atlanta Journal-Constitution was used in this report.