Refusing A Breathalyzer Test Is No Longer Self-Incriminating

People can now refuse breathalyzer tests both before and after arrest, and that can’t be held against them in criminal court.

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A person’s refusal to take a breathalyzer test can longer be used as evidence against that person in criminal court cases, the Supreme Court of Georgia has ruled.

In the ruling, the Georgia justices compared taking a breathalyzer test to making self-incriminating statements, something the Constitution protects against.

If police pull someone over for suspicion of drunk driving, they may ask him or her to breathe into a breathalyzer that measures blood alcohol content. That’s always been a voluntary test. But if police arrest someone for driving under the influence (DUI), they could compel that person to do the breathalyzer test.

With the new ruling, people can refuse the test both before and after arrest, and that can’t be held against them.

“If a client has taken a breath test and was compelled to do so, and I can get it excluded because of this ruling, then by all means that makes it easier to defend,” said Bob Chestney, a DUI attorney.

Thomas Nagel, a DUI attorney, said now police must give you what’s called an “implied consent warning.”

“That gives you the right to refuse the test, tell you what happens if you refuse the test and what the consequences may be,” he said.

Despite the new ruling, refusing to take a breathalyzer test still comes with a separate civil penalty — it can cost you your driver’s license for up to a year.

Under state law, any refusal of a test results in license revocation for up to a year for a first refusal. Drivers then have 30 days to appeal, but they have to prove that they did not refuse.

DUI attorney Bubba Head said that is a difficult burden to overcome but has been done.

Correction: This report has been updated to include the correct last name of DUI attorney Bubba Head.