New Georgia Case Prohibits Your Refusal to Take a Roadside Breath Test From Being Used Against You in DUI Cases.
Last year, in the famous Elliott case, the Supreme Court of Georgia held that someone's refusal to blow in to an Intoxilyzer breath test machine at the jail cannot be introduced as evidence against them in a DUI case because it violates Georgia's Constitution against forcing someone to make an incriminating act against themself.
Recently, the Georgia Court of Appeals addressed this issue as it relates to roadside alcohol tests, commonly referred to as preliminary breath tests or Alco-sensor tests. These are hand-held devices carried by some police officers, which are less reliable than the Intoxilyzer machines at police stations. While these devices do generate a specific breath alcohol content number, that specific number is not admissible as evidence against the defendant.
The question in Bradberry v. State was whether someone's refusal to blow in to a handheld device prior to being arrested for DUI can be used as evidence against that person in a criminal DUI case. The Court of Appeals said that it is similar to the situation in Elliott, in that the State cannot use a request or demand to make an incriminating act against them as evidence. That means that if the DUI case goes to trial, the officer cannot testify that the defendant refused to take the roadside breath test, and any dash camera or body camera video evidence demonstrating that refusal would have to be redacted.
If you're facing a DUI charge in the metro Atlanta area, feel free to call Kyle Jarzmik at 678-967-0197.