Law enforcement in Georgia making changes to DUI policy after Georgia Supreme Court ruling
In Georgia, some law enforcement agencies have had to adjust their DUI policies because of changes to implied consent. If someone refuses a breath test, it can no longer be held against that person in court. But if you refuse a blood test, it can still be held against you in court.
When an officer pulls someone over in Georgia for drinking and driving, they might ask you to take a field sobriety test along with a breath test. District Attorney for the Lookout Mountain Judicial Circuit, Buzz Franklin said officers would explain implied consent before administering a breath test, but now departments are not likely to administer them at all.
"Then the suspect has the right to say, yes I want to take the test, or no I want to refuse the test," said Franklin.
If someone refuses to take a breath test, it can't be held against you in court, but he says that the same conditions don't apply to a blood test.
"The refusal to take a blood test even under the Elliott Decision at this point in time still can be admitted against someone," said Franklin.
These changes came after the Elliott decision. The Georgia Supreme Court ruled that it was unconstitutional to admit into evidence that someone refused a breath test because that's a right protected under the Fifth Amendment.
Franklin explained why the court will take into account a refusal of a blood test, but not a breath test.
"Blowing into the machine is sort of a verbal act, which you're giving testimony in effect through your breath sample," said Franklin. "Blood being taken is more of a passive act, you're not giving it, you're sort of submitting to it."
Even if the person doesn't consent to the blood test, an officer can still get a warrant.
"The officer can go to a local magistrate, and ask the magistrate to issue a warrant to take someone's blood so that they can test that person's blood to see if they are under the influence of alcohol," said Franklin.
The process is more expensive, according to Franklin.
"I would think it would be more expensive, you have to have someone who is qualified to draw blood," said Franklin.
And it is more time-consuming.
"It is problematic, it is just a question of availability, you know we have small counties here in our four-county circuit," said Franklin. "So you might have one or two magistrates total in some of our smaller counties and finding somebody at 2:00 am is going to be a problem and you don't want to do that on a routine basis."
But they are looking at ways to ease the burden on officers and judges.
"They're looking at different things, they're looking at having to go to some sort of electronic method to get the magistrate to sign off on a warrant so the officer doesn't have to go to their house and fill out the paperwork, but that's still the future," said Franklin.
Law enforcement is adapting so they can continue to build solid cases against drunk drivers.
"I think a lot of departments are changing and going to a protocol where they don't necessarily ask for breath tests, they may ask for a blood test, which is actually more accurate," said Franklin.
Franklin says the Georgia General Assembly revisits implied consent regularly, but he hasn't seen any proposed legislation in regards to implied consent for this upcoming legislative session.