Hall County law enforcement and local attorneys are responding to a Supreme Court of Georgia decision Monday regarding breathalyzer tests and a person’s constitutional right against self-incrimination.
Stemming from a Gwinnett County case, the court ruled the state’s constitution protects citizens from self-incrimination both in testimony and acts “that generate incriminating evidence.”
“This case calls this court to decide whether this state constitutional protection prohibits law enforcement from compelling a person suspected of DUI to blow their deep lung air into a breathalyzer. A nearly unbroken line of precedent dating back to 1879 leads us to conclude that it does, although the appellant here still loses because the language of the implied consent notice statute he challenges is not per se coercive,” according to the opinion.
Gainesville Police DUI arrests
2016: 2992017: 259
Hall County Sheriff’s Office 1st Lt. Chris Dale said the case will have “little impact on how our deputies conduct (DUI) enforcement operations in the field.”
“We will continue to thoroughly investigate each case, read from the current Georgia Implied Consent Notice when appropriate, and base our decisions on the totality of the circumstances as well as the law,” Dale said in a statement. “The biggest impact will be seen in the courtroom, as the voluntariness of each breath test will be taken into consideration and weighed on a case-by-case basis.”
The implied consent notice for people 21 and older says the law requires you to submit to chemical tests “for the purpose of determining if you are under the influence of alcohol or drugs.”
“If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year,” the notice says. “Your refusal to submit to the required testing may be offered into evidence against you at trial.”
According to the Gainesville Police Department, there have been 259 DUI arrests in 2017. There were 299 cases in 2016 and 277 cases in 2015.
“I don’t know how much it’s going to affect the actual making of a DUI case or not,” Northeastern Judicial Circuit Public Defender Brad Morris said, as there are other tests used by law enforcement to assess sobriety.
Citing the federal Supreme Court, the Georgia Supreme Court wrote in its opinion that the deep lung breath for the breathalyzer test would require “the cooperation of the person being tested because a suspect must blow deeply into a breathalyzer for several seconds in order to produce an adequate sample.”
Regarding the refusal being used as evidence at trial, Morris said it’s “kind of up in the air.”
“Obviously, if a jury hears that you refused, even though that’s your right to do that, that has negative implications many times for jurors,” he said.
Defense attorney Bill Hardman said he believes law enforcement will be more careful in the circumstances surrounding any tests for blood alcohol content.
“Law enforcement officers have to consider whether a suspect has validly waived their right against self-incrimination,” he said.