Georgia Rules DUI Breath Tests as Evidence Unconstitutional

by Aaron Black • March 07, 2019
Breathalyzer test by PoliceArizona’s Maricopa County DUI attorneys are taking note of a new Georgia Supreme Court ruling. As well law enforcement in Georgia is scrambling to adjust to the state’s Supreme Court’s ruling on Feb. 18 that breathalyzer tests in DUI cases violate the state’s constitutional right against self-incrimination. The high court also affirmed its previous ruling that forcing someone to take the test violates Georgia’s constitution.

Arizona allows breathalyzer tests but not as trial evidence.

The justices in Georgia recognize that their ruling makes law enforcement’s job tougher.

“Law enforcement is just going to have to change their procedures,” said Pete Skandalakis, executive director of the Prosecuting Attorneys’ Council of Georgia. “If you’ve been in law enforcement or prosecution a long time, you understand these things happen.”

Skandalakis said the council now recommends that police stop administering the breath test, which indicates the level of intoxication. Without a breath test option authorities will have to obtain a search warrant from a judge to take blood or urine samples, which will be more difficult to obtain in rural parts of the state and take longer to have a search warrant issued.

In their ruling the justices considered the August 2015 arrest of Andrea Elliot who was stopped by a trooper with the Athens-Clarke County Police after committing several traffic violations including failure to stay within her lane line. The officer smelled alcohol and other signs of impairment and read to her Georgia’s “implied consent notice” that warns in refusing to submit to testing can be presented as evidence at trial.

At trial, DUI defense attorney Greg Willis motioned arguing that presenting Elliot’s refusal to submit to the test would violate her constitutional right but the lower court rejected that argument and Willis appealed to Georgia’s Supreme Court.

“What kind of right is it if you cannot exercise it?” Willis told the Atlanta Journal-Constitution. “I think it’s plain and simple, black letter law.”

Admin Per Se/Implied Consent in Arizona

In Arizona DUI suspects have the right to refuse a breathalyzer and other field sobriety tests, which authorities use to obtain the necessary probable cause to make a DUI arrest. If someone refuses the tests the state is not allowed to use the refusal at trial.

People often confuse the breath test with the blood and breath test taken after an arrest. If these tests are refused the state can suspend your driver’s license for a year under Arizona’s Admin Per Se/Implied Consent.

This implied consent law states that in lawful DUI arrests you automatically consent to taking a breath, urine or blood test. These can determine the level of intoxication.
However, before submitting to these tests you have the right to speak in private with a DUI defense attorney.

As an experienced DUI defense lawyer my goal is to have your case dismissed. In pursuit of this goal I aggressively – and personally – defend you. I represent a limited number of clients so each of them gets my personalized service.

If you or a loved one have been stopped on suspicion of DUI or have been arrested, your first line of defense is to remain silent and invoke your right to legal representation. These are your constitutional rights.

Contact the Law office of Aaron Black or call (480)729-1683 for a private and free telephonic consultation to discuss your case.
 

About the Author

Aaron Black is the founder and sole attorney of the Law Office of Aaron Black. Located in Phoenix, Arizona, his DUI and criminal defense law firm provides legal services to people who have received felony or misdemeanor charges from the state.

Aaron has developed a strong interest in defending people who have been arrested and received criminal charges for driving under the influence. With his professionalism and knowledge of Arizona DUI and criminal law, he has acted as a check and balance on the police, prosecution and courts and has protected a great number of his clients from excessive and unfair sentencing.

Along with DUI defense, Aaron handles a range of other criminal matters, including aggravated assault, burglary, domestic violence, drug possession, drug trafficking, fraud defense, insurance fraud, sex crimes and white-collar crime.

After graduating college in 2003 from the University of Arizona, Aaron decided to pursue a law degree. He followed a family long tradition and went to the University of South Dakota School of Law where he pursued his goal of becoming a criminal defense lawyer.

After passing the Arizona and South Dakota bar exams, Aaron joined the Maricopa County Office of the Public Defender where he defended hundreds of people charged with serious criminal offenses. His work as a public defender helped him sharpen his litigation skills and gave him a unique insight into the Arizona criminal justice system.

Over the course of his 15-year legal career, Aaron has spent a considerable amount of time in both Arizona justice, municipal, state and federal courts. He has argued over 50 jury trials, tried over 100 bench trials and has become one of the highest-rated criminal and DUI defense attorneys in Phoenix and the surrounding areas. He has received a 10/10 rating from the legal directory Avvo because of his legal background and successful case record. Since 2014, he has received the Super Lawyer rating for his work as a Phoenix DUI and criminal defense attorney.

You can review Aaron’s Attorney Bio page for more information about his background, education and experience as a Phoenix DUI and criminal defense attorney.
 
In light of the Coronavirus pandemic, I wanted to inform clients and potential clients I am still available for consultations. I am always available by phone, text and/or email. We can also use Facetime for social distancing. The criminal justice system is not stopping due to COVID-19.

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