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Georgia Supreme Court Rules Officer Cannot Compel Breath Tests on DUI Suspects

The Fifth Amendment to the United States Constitution protects Illinois DUI defendants and those in other states from self-incrimination. The Georgia Constitution’s protection is broader. It applies to more than just testimony, also applying to coercive acts that generate incriminating evidence. This fall, the Georgia Supreme Court had to decide whether the Georgia Constitution‘s protection prohibited police from forcing someone suspected of DUI to be breathalyzed.

The defendant was convicted of DUI and related traffic offenses. He appealed. He challenged the lower court’s denial of his motion to suppress the results of a breath test. He argued that Georgia’s implied consent notice statute was unconstitutional. He further contended that his state constitutional right against selfincrimination was violated when law enforcement asked to breathalyze him, and the deceitful language of the implied consent notice was coercive. For these reasons, the defendant argued that the admission of his breath test results violated his constitutional rights.

The court agreed with the defendant that taking a breath test implicates a Georgia resident’s state constitutional right against compelled selfincrimination, and it overruled precedent ruling otherwise. The court reasoned that the relevant portion of the Georgia Constitution prohibits compelling a suspect to perform an act producing incriminating evidence, but it does not ban compelling a suspect to be present so that another person may perform such an act.  And, as with other constitutional rights, a suspect may consent to act in a way the statute would prevent the state from compelling.

The court nonetheless rejected the defendant’s facial challenges to the implied consent notice statute, reasoning that the notice’s language was not coercive per se. Georgia’s implied consent statute, the court reasoned, does not criminalize refusing to submit to chemical testing, which puts the consent notice within the category of statutes that the U.S. Supreme Court has deemed not to be unconstitutionally coercive.

The court next held that the defendant had failed to demonstrate that the implied consent notice was unconstitutional in all of its applications. Since evaluating whether selfincrimination was compelled depends on the totality of the circumstances, the court reasoned, the defendant could not establish that the implied consent notice was materially misleading and inaccurate in every application, such that notice compelled submission to the requested breath test.

The defendant next argued that the notice given was coercive per se because it contained deceptive information about the results of refusing or submitting to a chemical test. He said that the notice warned that a refusal results in a license suspension, and a BAC of 0.08 or higher could result in a suspension. While the court agreed that he was correct that this information is not wholly accurate because suspensions are required in both cases, the court held that the fact that the notice improperly states the probability of a suspension does not necessarily make the notice per se coercive. The court could not say that the notice’s confusing language would likely play a conclusive role in a fact-finding decision.

The defendant’s facial claim was based on the idea that the notice would mislead a reasonable person. On the record, however, the court held that there was no evidence that the statute created confusion about the consequences of refusing or failing a chemical test. Since the court could not assume that the implied consent notice standing alone would compel reasonable people, the court concluded the appellant’s facial challenge lacked merit.

The defendant also raised an “as-applied” challenge to the notice. Specifically, he argued that the statute’s application violated his due process rights. The high court held that the trial court’s ultimate conclusion that the defendant was not compelled to submit to the breath test must be affirmed. The lower court said it considered all of the factors to determine the voluntariness of the consent to search, and these same factors are used in determining whether an incriminating actor statement was voluntary. Since the implied consent notice was not, by itself, coercive, and the defendant offered nothing else, the defendant’s claim lacked merit. Accordingly, the court affirmed the trial court’s order denying the defendant’s motion to suppress and affirmed his DUI conviction.

Under Illinois law, driving is a privilege rather than a right. Illinois residents give the police implied consent to compel submission to a breathalyzer test. Suspects can refuse, but the consequences are severe. An Illinois resident who refuses to submit to a breathalyzer test will have his or her license suspended for one year. If the suspect is taken to the hospital, the police can force the hospital to draw the suspect’s blood to measure the suspect’s blood-alcohol level.

The legality of a forced blood test has been challenged previously on the ground that it violates the Fourth Amendment to the United States Constitution. Litigants have asked the appellate court to rule the results inadmissible because the blood was drawn without a search warrant. But the Illinois Supreme Court decided that the law does not violate the warrant requirement as long as the police have probable cause that a DUI has been committed. Thus, no search warrant is required for forcible blood draws.

If an Illinois resident’s breathalyzer test yields a result of .08 or above, and it’s the suspect’s first DUI, his or her Illinois license will be suspended for six months. Some people believe that if they refuse a breathalyzer test, they will win their DUI case. While the prosecution will have a more difficult time proving the DUI charges without breathalyzer results, it does not mean that the prosecution will not be able to prove the case. A DUI can be proven in many ways, such as by testimony and field sobriety tests. If an Illinois resident refuses to submit to a breathalyzer test under the mistaken belief that the state will not be able to prove the DUI in court and is still convicted, he or she will also have to deal with a year-long driver’s license suspension.

If you have been charged with a DUI offense in Illinois, it is crucial to speak to an experienced Illinois DUI lawyer as soon as possible. Harvatin Law Offices, PC provides knowledgeable representation to people in Springfield and throughout Illinois. We have considerable experience defending individuals charged with DUI offenses and representing drivers with revoked licenses before the Illinois Secretary of State. To learn more, and to set up a free initial consultation, contact us online or call us at 217.525.0520.

More Blog Posts:

Washington Supreme Court Holds Random Urine Testing of DUI Probationer is Constitutionally Sound, Illinois DUI Lawyer Blog, November 2, 2017.

State Appeals Court Upholds Polo Mogul’s DUI Manslaughter Conviction, Illinois DUI Lawyer Blog, October 2, 2017.

Ten-Year Court Battle Culminates in Probation for Riverdale Homicide Defendant, Illinois DUI Lawyer Blog, September 1, 2017.

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