ATLANTA — Most Americans are likely familiar with the declaration that what you say can be used against you in a court of law.
Now, in Georgia DUI cases, so can what you don’t do.
The state’s highest court has drawn a dramatic distinction in what kind of evidence can be used against accused drunk drivers.
Georgia Supreme Court justices ruled unanimously on Thursday that if a driver declines to take a blood test during a DUI stop, it’s fair game for the prosecution to tell a judge or jury.
The ruling stems from an April, 2020 traffic stop in Fulton County, and came to the state Supreme Court as The State v. Dias. The driver later moved to suppress evidence that she had refused the arresting officer’s request to submit to a blood test. She also contended that the Georgia law which allows that refusal to be admissible as court evidence violated her rights.
The trial judge in Fulton County State Court agreed, and the State appealed to the Court of Appeals. The COA transferred the case to the Supreme Court, noting it’s a novel constitutional question.
“Very, very big,” says WSB senior legal analyst Ron Carlson. “This case sets up a remarkable distinction in Georgia law.”
He says if a prosecutor can reveal that a defendant refused a blood test, “That’s very damaging to a defendant and ensures, almost, a conviction.”
Carlson notes refusing a breath test, however, is protected in court by both the United States and Georgia constitutions.
In past cases, the court has pointed out breath tests require the cooperation and direct action of the suspect.
“He’s got to huff and puff and draw deep breaths, and to force a defendant to do this violates Georgia’s privilege against self-incrimination,” explains Carlson, “whereas if the defendant can remain passive--like when blood is taken or in a murder case where the defendant’s hands are swabbed for gunshot residue and he can just sit there--no constitutional rights are involved.”
The state Supreme Court says the trial court erred when it suppressed evidence about the blood test refusal based on due process and self-incrimination grounds. The opinion written by Justice John Ellington makes clear that the Court’s previous exclusions of trial evidence on Fourth and Fifth Amendment grounds involve breath tests, not blood ones.
“We did not hold in Elliott, or in any other case, that evidence that a DUI suspect asserted her right under the Fourth Amendment to refuse to submit to a warrantless blood test is inadmissible at trial on the basis that, as [Christine] Dias claims, use of such evidence would infringe upon her right against unreasonable searches and seizures under the Fourth Amendment, her right to due process under the Fifth Amendment, and Paragraph XVI.
“The novel constitutional question that was raised below — whether the evidence at issue is inadmissible on grounds other than the self-incrimination holdings in Olevik and Elliott — was not directly and distinctly ruled on by the trial court. That remains an open question,7 on which we express no view today,” Ellington stated.
Refusing either test when pulled over does not prevent a Georgia driver from being taken into custody when an officer has probable cause to suspect driving under the influence. This ruling only involves what evidence is legal in prosecuting the charge.
In a concurrence, Presiding Justice Nels Peterson writes that evidence of a defendant refusing a warrantless search may indicate consciousness of guilt, but that there are other reasons for a person to reject a search without a warrant. Peterson says they might be busy, late, in a bad mood, of law enforcement, be squeamish about needles and blood, or a countless other reasons. The concurrence was joined by Justices Bethel and McMillian.
“All of those are perfectly good reasons not to consent. None of those reasons offer any basis for suspecting the nonconsenting person of crime,” writes Peterson. He urged the trial court getting the case back now to
weigh whether that evidence could be more prejudicial to the defendant than probative for the State.