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Georgia State Supreme Court finds State Constitution forbids using Breath Test Refusal in Criminal Proceeding

Monday, February 25, 2019 10:41 AM | Anonymous member (Administrator)

The Georgia Supreme Court handed down Elliott v. State holding that a driver's refusal to take a breath test cannot be held against them in a criminal proceeding. The Georgia high court noted that while under U.S. Supreme Court precedent the Fifth Amendment does not prohibit using a refusal as part of a criminal proceeding, the Georgia Constitution's protection against compelled self-incrimination is broader. Writing for a unanimous court, Justice Peterson acknowledged the state's interest in prosecuting DUI offenses but that "the right to be free from compelled self-incrimination does not wax or wane based on the severity of a defendant’s alleged crimes." Elliott builds on a 2017 Georgia Supreme Court (Olevik v. State) which held the state's constitution prohibits both self-incriminating testimony but "also protects us from being forced to perform acts that generate incriminating evidence." 

While the concurrence, noted that the decision was limited to use of refusal of a breath test criminal proceeding, it seems highly unlikely the ruling will not also apply to tests of a driver's blood and refusals as part an administrative proceeding concerning license suspension.  Likewise, the reasoning seems to also apply to a host of other acts including portable breath test refusals, field sobriety test refusals, and drug recognition refusals.  Georgia is on the same path as Massachusetts, which has extremely high refusal rates (over 80% refusals), because there is no legal consequence to a refusal. 

The Georgia decision should have no effect in Washington State.  The Washington state constitution guarantees the right against self-incrimination under Article 1 sections 9. That right has been interpreted by our supreme court as “co-extensive” with the comparable federal constitutional right in the Fifth Amendment. The Washington constitutional provision is not broader, unlike the provision in Georgia.  See State v. Unga, 165 Wn.2d 95 (2008) citing State v. Earls, 116 Wash.2d 364, 374–75, 805 P.2d 211 (1991)

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