Georgia House Bill 471: to address DUI Implied Consent

AJC Photo of motorcycle wreck

As reported in the Atlanta Journal Constitution, legislators scrambled to fix Georgia’s DUI law after the state’s highest court ruled last month that refusing to take a breathalyzer test can’t be used in court against motorists suspected of driving drunk. In the Elliot decision a unanimous Georgia Supreme Court upheld citizens right to be free from a state compulsion to give breath test evidence against themselves or have that right to refuse used as evidence against them in criminal court. Contrary to some claims from politicians, the sky is not falling. DUI laws are still being enforced.

According to State Representative Steve Sainz, absent this new bill, drunken drivers could say police coerced them into handing over evidence against themselves. Rep Sainz, the sponsor of House Bill 471 claims  police can still ask drivers to voluntarily take breathalyzer tests, and they can require blood and urine tests. House Bill 471 up for a final vote in the state Senate doesn’t reinstate mandatory roadside breath tests.–regional-govt–politics/forced-dui-breath

It would take an amendment to the Georgia Constitution to override the Georgia Supreme Court’s opinion that requiring breathalyzer tests is a violation of protections against self-incrimination.

“We all understand we need a fix now and then look at what we’re really going to do to ensure DUI compliance,” said Sainz, a Republican from Woodbine. “Anyone who’s in a car in Georgia deserves to know that we’re prosecuting DUIs effectively, efficiently and legally, and that folks aren’t getting off on an unnecessary technicality.”

Politicians love to call any successful limitation of state power a “unnecessary technicality”. In this case it would require constitutional protections that have shielded Georgians for decades be discarded and the constitution itself amended to overcome the so-called “technicality”.

Georgia State Flag

Nothing in the recent decision upholding the constitution or the new law effects the civil penalties already in place for drivers who refuse a request for a breath test. While refusing to take a breathalyzer test can’t be used against defendants as evidence in a criminal case, their unwillingness could still result in an automatic one-year suspension of their driver’s licenses. License suspensions are considered an administrative penalty rather than a criminal punishment.

“So what this bill does is it updates the Georgia statute to correctly reflect the state of the law as to implied consent in DUI investigations,”
 Chairman of the House Judiciary Non-Civil committee Representative Chuck Efstration said.

The Implied Consent Notice under the current law says, ‘refusal to submit to required testing may be offered into evidence against you at trial.’

Since refusal of a breath test being used against you in court was ruled unconstitutional, legislators want to adjust the consent wording to read, ‘your refusal to submit to blood or urine testing may be offered into evidence against you at trial.” This removes the word breath to comply with the State Supreme Court.

“So by no means does this opinion allow individuals to drive under the influence,” Rep. Efstration said. “To the contrary officers still have tools to investigate and prosecute DUI.”

Police can still seek and obtain warrants for blood samples which are still admissible in criminal court.