Blown With the Wind: The Demise of Georgia's DUI Implied Consent Law Prior to Elliot v. State, S18A1204 (2019), the law as applied in Georgia was that a refusal to submit to the required test of your blood, breath, urine, or other bodily substances “may be offered into evidence against you at trial.” OCGA § 40-5-67.1 (b)(2). Further, OCGA § 40-6-392(d) states, “In any criminal trial, the refusal of the defendant to permit a chemical analysis to be made of his blood, breath, urine, or other bodily substance at the time of his arrest shall be admissible in evidence against him.”
Those above-cited laws have been found unconstitutional under the Georgia Constitution. They would not be unconstitutional under the U.S. Constitution or the constitutions of most other states. This is important because, now especially, it is likely only a matter of time before Georgia does decide to follow the majority of other states in limiting what constitutes self-incriminating testimony.
But, for the time being, these statutes have been found to violate Article I, Section I, Paragraph XVI of Georgia’s Constitution. Therefore, under Elliot, and Olevik v. State, 302 Ga. 228 (2017), not only can a person pulled over on suspicion of DUI not be required to provide a breath sample to the police, but that person’s refusal to so provide cannot be used as evidence in a trial against them. Self-Incrimination: Testing the Meaning of Testimony If an action is forced, or if it is somehow affirmative, then it is presumably testimony that cannot be used against an accused. Even so, what is and is not testimony may not be clear. Rather, it seems situational. And therefore, even without redress by our General Assembly, and though the Georgia Supreme Court tries to apply a steady hand to its analysis, nevertheless, future cases may yet change what is and isn't testimony.
For example, in a probation violation case, it has been held “the use of a substance naturally excreted by the human body does not violate a defendant's right against self-incrimination under the Georgia Constitution. Thus, the use of appellant's urine sample [does] not violate [one’s] constitutionally-protected right against self-incrimination. Green v. State, 260 Ga. 625 (1990).
Where a person convicted of a drug felony had his DNA extracted and then that DNA was used to link him to a prior rape case, such evidence was not violative of the defendant’s right against self-incrimination. Quarterman v. State, 282 Ga. 383 (2007).
In a murder case, taking a dental impression was found to be constitutional. State v. Thornton, 253 Ga. 524 (1984). In Thornton, our Georgia Supreme Court found in taking dental impressions, there was “no surgical foray into the body of an accused[,]” and it “decline[d] to extend our Constitution so far as would prohibit reasonable police practices, such as the taking of fingerprints, to which the taking of dental impressions is analogous.” Id. at 525.
Therefore, considering the above cases, which are still good law, the State would be wise to, and will no doubt, innovate its testing methods in the DUI context. If action by the accused is the fulcrum point at which self-incriminatory testimony is balanced against mere passive submission, then under the above case facts we learn what likely will work for the State moving forward.
For instance, if tests are developed by which a skin sample may be taken from a person, or a swab of sweat collected from their skin, and then tested reliably for blood alcohol content (BAC), such physical evidence will likely be admissible. If one’s breath can be collected and reliably tested just by sampling the air around the backseat of a police car, or briefly placing a mask over a person’s face, these collection techniques will also likely pass constitutional muster. Everyone Pees: No Free Ride to DUI Elliot does not affect the provisions of law at issue, specifically OCGA §§ 40-5-67.1 (b)(2) and 40-6-392(d), as regards the collection of blood. Considering what is allowed, e.g. the collection of DNA, urine, dental impressions, etc., one might suspect we will see an increased effort to collect blood and urine in the DUI context. Afterall, with no compulsion from the State, everyone must pee at some point.
And, Elliot does not touch the legalities or process by which a person who does not submit to a test of their blood, breath or urine will find their driver’s license subject to an Administrative License Suspension. Indeed, given the constraints in prosecuting cases without evidence of a BAC number or refusal, it may be that the State fights harder for a pre-trial Administrative License Suspension post-Elliot.
Lastly, given that three Justices invited our General Assembly to revisit Article I, Section I, Paragraph XVI of Georgia’s Constitution, it is likely just a matter of time before the law is changed so that, once again, one’s refusal to blow into the State test is admissible against an accused. It is really just a matter of how soon our legislature seeks to address the issue.