Elliot v. State

When the Decision by the Georgia Supreme court first came out in Elliott v. State it appeared that the state was going to have an issue with implied consent in Georgia.

Almost immediately, the legislature began “reacting” to attempt their fix on the issue (Covered by the Atlanta Journal and Constitution, and Local News Networks such as 11 Alive, Fox 5, and WSB).

I previously wrote a blog about this bill when it was first suggested which can be read here and goes over all the portions of this bill The bill, House Bill 471,  was clearly reactionary in nature as it missed the mark on what the emphasis the Supreme Court said was the true issue with the implied consent law. On March 19, 2019 the Senate signed off on House Bill 471 and it is on its way to the Governor’s desk for approval and signature into law.

So, why is this so 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. This portion of the implied consent is still in the new bill that is going to the governor’s desk.

So you may be wondering how and why the court 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. In essence, the fix that the legislature has suggested would still allow them to use these scenarios to get a conviction for DUI cases.


Next many people are saying that “well it looks like the officers and troopers will just be requesting blood draws on DUI arrests or getting a warrant for a blood draw. This seems fine, with one exception that there is still an issue with forcing a blood draw on a DUI arrest as well. Many cases have previously made the assertion that there is a fundamental protection where blood draws are involved as well if they are not consented to and are forced.


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.

Michael D Barber
Georgia Lawyer specializing in DUI, Drug Charges & Criminal Defense