The Future of Breath Tests in DUI Cases in Georgia.
The landmark Elliott case that prevents prosecutors from introducing evidence of someone's refusal to submit to a breath test in Georgia is also affecting actual breath tests in Georgia. Many courts and even prosecutors are not introducing evidence of most breath tests in light of the Elliott case. That is because almost any breath test was given to the police AFTER the officer read the Implied Consent warning that is inherently misleading and now legally wrong because it includes language that one's refusal to submit to a breath test can be used as evidence at trial.
While the lack of a breath test as evidence almost always weakens the prosecutor's DUI case, it does not mean that the State's entire DUI case is dismissed. The prosecution can still potentially admit all evidence up to the point of someone's arrest, which might be enough to convict someone of DUI-Less Safe. While the Elliott ruling might lead to more DUI cases being amended to Reckless Driving in the short term, do not assume that all DUI cases involving breath tests will be reduced, dismissed, or lead to acquittals.
The police are now much more likely to request blood tests instead of breath tests when reading implied consent, and the new implied consent warning implemented by the Georgia legislature eliminates the section about using a refusal as evidence. Blood tests obtained after reading the old implied consent warning can also be litigated, because it still includes misleading language reading the admission of a refusal.
Lastly, no court has held that the implied consent warning is invalid as it relates to the administrative license suspension procedures.
If you have a DUI case, whether it involves a blood test, breath test, or refusal, feel free to call me at 678-967-0167.