A recent case in DUI law was decided by the Georgia Supreme Court. This new DUI law in Georgia could have plications concerning the use of the Breathalyzer in Georgia.
In Elliott v. The State, the Georgia Supreme Court ruled that a refusal of a Breathalyzer test cannot be used as evidence against a defendant in court. In the past, a refusal could be used to imply that they probably refused the test because the person knew it would show a positive result.
The Court ruled that because the defendant had the right to refuse testing, admission of her
refusal violates Georgia's provision against compelled self-incrimination. The Court also notes
their holding here may affect future considerations about whether a defendant's consent was
voluntary under the current implied consent law, which contains language advising that refusals
may be admissible at trial. Based on this, it would be dangerous to expect consent given under
the implied consent law to be affirmed in future appellate proceedings.