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The implications of implied Consent and DUI after Elliott v. State

by | Mar 3, 2019 | Firm News |

Why it just got harder for DUI Prosecutors after Elliott v. State?

In the news lately, you may have seen mention of a recent DUI case decision that is going to have a long lasting affect on Georgia DUI cases. Covered by the Atlanta Journal and Constitution, Local News Networks such as 11 Alive, Fox 5, WSB and even national network news such as the Associated Press all ran cover stories about “Georgia High court rules that a DUI refusal can no longer be used against you.” What does this really mean though?

Many people don’t realize that they have the benefit of more than just one constitutionally mandated protection when it comes to defenses from prosecution for charges involving Driving Under the Influence in Georgia. Most people do know that we are afforded protections (basic rights) under the Constitution for the United States of America. However, we as citizens of Georgia are afforded even more protections under another constitution which was passed by the General Assembly comprised of the Georgia State Representatives. The Georgia Constitution also affords citizens from inalienable rights against harsh overtreatment by the state.

On February 18, 2019 the Supreme Court of Georgia, with a 94 page opinion led by Justice Peterson, decided that there was a right under Article I Section I of the the 16th (XVI) paragraph of the Georgia Constitution that was not being correctly upheld regarding arrest procedures for Charges of Driving Under the Influence in the State of Georgia. This section involves someone’s right against compelled self incrimination. In particular, this deals with Self Incrimination under the Chemical Breath Test (intoxylizer) portion of a DUI Arrest.

Under the protection of United States Constitution “No man shall be compelled in any criminal case to be a witness against himself.” (United States Constitution Amendment V). This clause was reviewed by the Supreme Court of the United States (SCOTUS) and determined that , the United States Supreme Court had already made a determination on this issue wherein under the case of United States v. Wade that the fifth amendment to the constitution does not apply to affirmative acts. (US V. Wade, 388 U.S. 218). So, Why is this important for a DUI defense? Because the argument being given is that the breath test in itself is a compulsion to incriminate yourself and isn’t really an option. That YOU are performing an affirmative act when you are asked to blow into a intoxilyzer which in turn will assist the state in prosecuting YOUR Georgia Driving Under the Influence case.

So you may be wondering how and why our determined in this decision (as in many prior) that “the construction of similar federal constitutional provisions though ‘persuasive authority’ is not binding n this state’s construction of its own constitution.” Elliott v. State citing Pope v. City of Atlanta 240 Ga. 177, 178 S.E. 2d 241). What this means is that where we are afforded, or given, fundamental rights and protection as citizens of our state, and those rights are directly on point to protect us. So our states rights will override whatever federal constitutional right that is also mentioned. In essence this allows the state to give its citizens more protections than the United States Federal Law gives us as citizens. If ever there was a reason to be glad we have states rights apart from Federal rights it is from prime examples such as this.

In summation, this landmark case did several things. It made it absolute that the law enforcement for the State of Georgia can no longer use the refusal to submit to field sobriety (or DUI) testing to be admissible against YOU in court, (this is where you refuse to take field sobriety examinations during the officer’s DUI investigation). This essentially makes it so that the prosecuting arm of the state, (whether a solicitor general or a district attorney), cannot use your “DUI refusal” as a part of their prosecution against you. Previous to this decision by the Georgia Supreme Court, a Jury was allowed to draw adverse inferences from YOUR right to refuse. Imagine the scenario like this: You refuse, the state gives that information to the jury and tells the jury, “if they were innocent they would have taken the test, therefore they must be guilty!?” Now, however, the state cannot do this and must remain silent as to mentioning YOUR refusal during a trial with the Jurors listening and making decisions.


Every DUI case is different because not two sets of facts are the same. Application of the above case law to your situation would take examination of the facts surrounding your case and applying this case law properly to create a properly mounted defense for YOUR arrest.

Our office has 24 hour response lines and can answer your questions and help you. Give our team of DUI defense lawyers a call at 404-445-8494. We can help you mount a proper defense for your situation.