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Does breath test refusal use violate self-incrimination clause?

The Supreme Court of Georgia has just made an interesting ruling in the area of DUI. When someone refuses to take a preliminary breath test offered by police, that refusal cannot be used against them in the DUI trial. The justices reasoned that using a refusal against the driver would violate the Georgia Constitution's protection against self-incrimination.

Here in Tennessee, refusing to take a breath test is a civil violation that results in the revocation of your driver's license. The reasoning is that every driver, by virtue of using Tennessee's roads, gives their implied consent for reasonable DUI testing. By withdrawing this consent (refusing to blow into a breathalyzer), the driver forfeits his or her driver's license.

The fact that you refused a breathalyzer can also be used as evidence against you in your DUI case.

In Georgia, that will no longer be the case. When a driver refuses a breath test, the officer will generally get a warrant for a blood or urine test. The Georgia court affirmed a previous ruling that officers can't force drivers to take warrantless breath tests. Also, the U.S. Supreme Court ruled that the government can't force people to take warrantless blood tests.

According to police and prosecutors, getting a warrant can be cumbersome. While electronic processing of warrants makes getting one from the side of the road quite convenient, there are counties that do not offer this service. That means police will have to go the old-fashioned way and approach a judge directly, even if that means waking one in the middle of the night.

Moreover, some counties have jail workers who are available to perform blood and urine tests. In others, the police will have to rely on hospitals for these tests. Police fear that this will cause delays that will allow the blood in drivers' systems to metabolize away.

Refusal to perform breath tests is pretty popular in Georgia. According to the Atlanta Journal Constitution, more than 11,000 people had their driver's licenses suspended in 2017 in Georgia due to refusing to take a breathalyzer test. Overall, there were almost 23,000 DUI convictions that year, so roughly half of drivers are refusing.

The Georgia Supreme Court said that it had no choice but to interpret the statute and the Georgia Constitution as written. It indicated that the legislature might be able to rewrite that state's implied consent law to avoid the self-incrimination issue. If that wouldn't work, the state could attempt to amend the constitution.

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