Skip to main content
Criminal Defense

Georgia Supreme Court rules on refusal to take breath tests

By March 6, 2020March 9th, 2020No Comments

In a far-reaching ruling, the Georgia Supreme Court has struck down part of our state’s DUI law. Now, refusing to take a breathalyzer test can no longer be held against drivers in their criminal DUI cases. It can still be used to suspend your driver’s license, however.

The court found that the Georgia Constitution’s protection against self-incrimination applied. Police can’t force drivers to take breath tests, the court had already ruled. If the driver’s lawful refusal were to be used against the driver, it would essentially require him or her to provide incriminating evidence to law enforcement.

The court acknowledged that its ruling could make things a bit harder for law enforcement, especially in rural parts of the state.

“This Court cannot change the Georgia Constitution, even if we believe there may be good policy reasons for doing so; only the General Assembly and the people of Georgia may do that. And this Court cannot rewrite statutes,” reads the opinion.

According to the Atlanta Journal-Constitution, the Georgia legislature is likely to attempt a rewrite of the statute to get around the ruling.

Now, the law allows drivers to refuse a roadside breath test. If they do, the police must then obtain a warrant for a blood or urine test. The new ruling does not apply to blood and urine tests.

It’s difficult to tell whether the change will actually burden law enforcement. All it actually requires is that the officer get a warrant for a blood or urine test. Traditionally, the default position has been to require a warrant unless there is a specific exception to justify going without one. In a sense, the police should always have defaulted to requiring a warrant, although an exception often does apply in DUI cases.

Law enforcement officials told the AJC that getting warrants is difficult, particularly in some rural areas where the judge assigned to hear warrants that day must be located and asked in person. However, in more populated areas warrants can generally be obtained electronically, on the spot.

Nevertheless, Athens-Clarke County Police have decided to drop roadside breath tests altogether and insist on a blood or urine test in all situations.

In 2017, almost 23,000 people were convicted of DUI in Georgia. The number of people whose licenses were suspended for refusing to take a breath test was 11,000. That could indicate that nearly half of drivers pulled over for DUI have been refusing the breath test.

If you have been charged with DUI or refusal to take a breath test, contact an experienced criminal defense attorney right away.

Hi there, have a question?

Text us here.


From I-75: Exit at the Highway 120 (South Marietta Parkway) (Exit #263) and follow the signs to KSU Marietta Campus.

You will be headed west and cross over Cobb Parkway (US 41).

Continue until you get to the intersection with Atlanta Street.

At the traffic light turn right onto Atlanta St. (going north).

Atlanta Street will take you straight to the Marietta Square.

Prior to entering the Square, you will see Anderson Street a block before the Square.

Turn Right onto Anderson Street. The Lawyer’s Building will be on your right.

Skip to content