Up until recently, refusing to take field sobriety tests (FSTs) in Georgia was admissible evidence against you. The prosecutor’s logic being that you must have refused to take any field tests due to the fact you knew they would reveal your intoxication. However, the Georgia Supreme Court recently published the Ammons decision which mandates that under the Georgia Constitution, exercising your right to refuse to participate in this sobriety testing cannot be held against you. While a lot of people may think that this rule should have always been the case, it was not. So, how does refusing certain evidence in a DUI investigation help you, and how could it hurt you?
Refusing Field Tests
The Georgia Supreme Court’s October, 2022, Ammons case has shut the door on prosecutors attempting to argue to judges and juries that anyone that refuses to participate in field sobriety testing did so to hide evidence of their intoxication. The logic is that all of these tests require you to participate and perform acts of one kind or another, and the Paragraph 16 of the Georgia Constitution specifically protects our rights to refuse to participate in incriminating acts. The most common field sobriety tests that are affected will be the eye tests (horizontal gaze nystagmus, Romberg, lack of convergence) and the divided attention tests (walk and turn; one leg stand). However, there is room to argue that most anything, especially if specifically designed to uncover any impairment, should be excluded and not considered in evidence. Things like saying some partial alphabet (E-U or D-M), counting backwards numbers, etc.) should all be excluded from evidence. Additionally, refusing to take a roadside breath test (PBT) is now clearly inadmissible.
Obviously, this ruling levels the playing field for motorists savvy enough to decline to participate in all of these roadside tests. But, for those who did attempt tests and were still arrested, the ruling should help analyze whether the tests were actually voluntarily performed, or not. If you did perform testing, don’t worry. There are methods to attack these tests and their validity.
Refusing Chemical Tests
After you’ve been arrested for DUI, under Georgia’s implied consent law, you must submit to a blood, breath, or urine test. That is, unless you don’t! Confused? No worries, it is confusing. Officers are trained to read you the implied consent notice as soon as they have decided to arrest you. Under the current state of affairs in Georgia, your refusal to submit to a test of your breath or urine cannot be held against you in any future court proceedings. Logic being, blowing into a breath test, or urinating into a cup, require you to perform an act. In contrast, submitting to a blood draw, at least as far as Court’s are currently concerned, does not. A blood draw simply requires you to comply with the collection of evidence. I know, the distinction is, well, confusing.
Challenges are being mounted to blood testing and the higher courts will have to confront these issues head on in the upcoming months. One of the strongest arguments against allowing a refusal of blood testing is the principle that you have the right, under both state and federal protections, to refuse warrantless searches. Drawing blood from someone is surely a search, right?
Fighting Georgia DUI Refusals (or Blood-Breath tests)
Our trial team has been defending clients charged with DUI refusal, and DUI per se for almost 40 combined years. Our courtroom presence combined with our knowledge of relevant Georgia law is your greatest asset when defending against charges of DUI. If you are currently faced with a DUI prosecution, reach out today to discuss your case and allow us to give our insight on your best defense. We are 24/7/365.