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Elliott Case Georgia DUI Refusal

Elliott Case – DUI Refusal Cannot Be Used Against Defendant at Trial


By: William C. Head, Best DUI Lawyers Near Me in Atlanta Georgia and Board-Certified by the National College for DUI Defense


In Elliott v. State, 305 Ga. 179 824 S.E.2d 265 (2019), a Clarke County State Court case, a legal challenge was made at a pre-trial motion hearing that challenged a DUI refusal in a driving under the influence case for which the arresting officer sought a post-arrest, implied consent, breath alcohol test. The accused, Andrea Elliott, said “no” to the forensic test.

Under Georgia black letter law, the prosecution had been able to use that “evidence of refusal” at the criminal trial since the 1960s. The motion hearing focused on the defense attorney arguing that use of THIS type DUI test was a violation of the Georgia Constitution, Article 1, Section 1, Paragraph XVI.

Prior to another case, Olevik v. State, Georgia cases followed existing Georgia code provisions that had (for decades) allowed the State to use refusal against the accused citizen. The United States Constitution offers no such protections. However, the Georgia Supreme Court had held previously (in Olevik) that the protection against compelled self-incrimination provided by Paragraph XVI of the Georgia Constitution did cover breathalyzer tests, after arrest, just as though she had been asked questions that could further incriminate her.

The Elliott case has now routinely been cited by other Georgia lawyers to exclude both breath alcohol tests collected on an Intoxilyzer 9000, and any DUI refusal evidence. In addition, the Georgia implied consent notice was hurriedly amended by the Georgia legislature, and signed into law on April 28, 2019 by Gov. Brian Kemp.

The landmark DUI case significantly alters DUI law under O.C.G.A. 40-5-67.1 (b), for arrests made after the 28th day of April, 2019. It was decided February 18, 2019, Supreme Court of Georgia case No. S18A1204. The newly-worded, 2019 implied consent warnings are found here.

Georgia Supreme Court Entrance

So, in Elliott, both the OLD version of OCGA 40-5-67.1 (b) and 40-6-392 (d) were ruled to be unconstitutional, as applied to breath alcohol tests, OR a person’s refusal to submit to an alcohol breath test. This blocks admissibility of either at a criminal trial. The ruling by the Georgia Supreme Court reversed the Athens-Clarke County judge’s erroneous ruling and changed DUI law in Georgia forever.


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