Gainesville Police are holding their breath — or at least the word “breath” from the implied consent notice read to suspected DUI drivers.
In the wake of a Georgia Supreme Court ruling that refusing to give a breath test could not be held against you in court, police are changing how they approach these suspects.
“Currently, we will only be seeking a blood sample under implied consent,” Gainesville Police Chief Jay Parrish wrote in an email.
Law enforcement is taking guidance from Hall County Solicitor General Stephanie Woodard’s office, as the solicitor and other state prosecutors grapple with the Supreme Court’s decision in Elliott v. State.
“While we work diligently to ensure that our policy and approach are consistent with Elliott, our deputies continue their efforts to keep our roads safe from DUI drivers,” Sheriff Gerald Couch said.
DUI arrests by Gainesville Police
2019: 43 as of Feb. 21
DUI arrests by Hall County Sheriff’s Office2015: 260
2019: 55 as of Feb. 22
Woodard testified last week under the gold dome for what a potential fix could be for the notice read to drivers arrested for DUI.
The opening of the implied consent notice reads: “Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs.”
Refusing the test can lead to at least 12 months suspended license, and that information “may be offered into evidence against you at trial.”
“We’re trying to thread the needle of getting that language corrected … before the end of (the legislative) session,” Woodard said.
Under a 2017 decision, Olevik v. State, the protection on self-incrimination in the Georgia constitution “prevents the State from forcing someone to submit to a chemical breath test.”
In that case, the court ruled that the “sustained strong blowing necessary for a breath test properly is analyzed as an affirmative act.”
In August 2015, a police officer stopped Andrea Elliott in Athens-Clarke County. Elliott admitted to drinking alcohol that day, and the officer noticed “several signs of impairment, including several clues during a field sobriety test,” according to the court’s summary of facts in the opinion.
Elliott was arrested for DUI and read the implied consent notice.
She did not take a breath test and went to jail.
Elliott filed a trial motion to have the evidence suppressed, claiming it would violate her “right against compelled self-incrimination,” according to the court’s opinion.
“Prior to the adoption of a provision on self-incrimination in the 1877 Constitution, Georgia courts described the right against compelled self-incrimination as forbidding a ‘man … to accuse himself of any crime, or to furnish any evidence to convict himself of any crime.’”
Woodard stressed that a citizen can still opt to take a breath test.
“Until that wording is changed in the statutory warning, they have to ask for blood or urine if there’s a suspicion of probable cause for DUI. Hopefully, we can get that changed, because many people would much rather give a breath test than a blood sample, but those are the only two options that are left until we can get that legislative fix,” Woodard said.
The day after the Elliott ruling, Gainesville Police put in an order for another 120 blood testing kits at $5.77 per unit.
The refusal of blood and urine can still be used against a suspected DUI driver at trial.
If a person complies to a blood test, Gainesville Police Sgt. Justin Martin said the person is most likely taken to the Hall County Jail nurse, who performs the blood draw. In certain cases, police may take the suspect to Northeast Georgia Medical Center.
“Prior to Elliott and Olevik, we’re requesting blood if we’re already at the hospital for some reason — a wreck, an injury, something like that — or if it’s suspected that it’s a drug case,” he said.
Using the Intoxilizer 9000, the breath-testing machine in the Gainesville Police’s intake room, is “less intrusive, easier” and provides the suspect with an immediate result, Martin said.
Blood samples are sent to the Georgia Bureau of Investigation, which can have a 60-day turnaround time.
“Blood is the better source, because it’s going to have everything. What is psychoactive in your body is going to be in your blood,” Martin said.