Forced DUI breathalyzer tests remain banned under Georgia bill

Legislators scrambled to fix Georgia’s DUI law after the state’s highest court ruled last month that refusing to take a breathalyzer test can’t be used in court against motorists suspected of driving drunk.

But a bill up for a final vote in the state Senate on Thursday doesn't reinstate mandatory roadside breath tests.

Drunken driving cases will remain harder to prove because of the Georgia Supreme Court's decision. Police will need to bring suspects in for blood tests to find out their intoxication levels.

The legislation simply changes the language officers read after they pull drivers over so that it’s consistent with the court’s ruling. Police will no longer tell suspects that their refusal to submit to breath testing could be used against them.

Without the bill, drunken drivers could say police coerced them into handing over evidence, said state Rep. Steven Sainz, the sponsor of House Bill 471. Police can still ask drivers to voluntarily take breathalyzer tests, and they can require blood and urine tests.

Lawmakers couldn’t do more this year, so soon after the court’s ruling, Sainz said. It would take an amendment to the Georgia Constitution to override the Georgia Supreme Court’s opinion that requiring breathalyzer tests is a violation of protections against self-incrimination.

“We all understand we need a fix now and then look at what we’re really going to do to ensure DUI compliance,” said Sainz, a Republican from Woodbine. “Anyone who’s in a car in Georgia deserves to know that we’re prosecuting DUIs effectively, efficiently and legally, and that folks aren’t getting off on an unnecessary technicality.”

In the meantime, police and prosecutors will gather evidence besides breathalyzer tests in drunken driving cases, said Hall County Solicitor General Stephanie Woodard, a member of the Prosecuting Attorneys' Council of Georgia.

Officers can use dashboard video footage showing when drivers are swerving and speeding. Police can also tell juries about slurred speech, open containers and field sobriety tests.

“We’re not using the refusal to take a test anymore because the Supreme Court has said we can’t,” said Woodard, who prosecutes state misdemeanor crimes. “You still have really unsafe driving or physical manifestations where people behave in a way that people can tell they’re not driving safely.”

Many drivers will agree to take breathalyzer tests even though police can’t force them to, said Ray Giudice, a defense attorney who handles DUI cases. Drivers are considered drunk in Georgia if tests show they have alcohol concentrations above 0.08 grams.

“If you’re pulled over by law enforcement at 2 in the morning and the man with blue lights, a badge and a gun is asking you questions, it’s pretty tough to formulate a legal strategy on your feet on the side of the road,” Giudice said. “If you really had just those two beers, my thought has been to just take the test. You’ll either be under the limit or so close to the limit that you can manage the case.”

While refusing to take a breathalyzer test can’t be used against defendants in a criminal case, their unwillingness could still result in an automatic one-year suspension of their driver’s licenses. License suspensions are considered an administrative penalty rather than a criminal punishment.

Defense attorneys will likely fight those suspensions, which were left in place by the Georgia Supreme Court's decision, Elliott v. the State.

State lawmakers and prosecutors might also review whether to continue automatic suspensions for refusing a breathalyzer test, Woodard said. Most punishments for breaking the law are imposed only after someone is convicted.

Police are already adapting to breathalyzer restrictions. For example, the Bibb County Sheriff’s Office has stopped giving motorists suspected of driving drunk the option of voluntarily taking a breathalyzer test, Capt. Brad Wolfe said. Instead, deputies bring drivers into the Sheriff’s Office, which works with a company that draws blood and delivers it to the crime lab.

“Drivers shouldn’t feel any different than they ever did,” said Wolfe, who oversees the office’s patrol divisions. “It’s still a very real possibility that they could be arrested and prosecuted for DUI. That (court ruling) just took away one tool.”

While the bill in the Senate on Thursday only deals with the language police officers use on drunken driving suspects, additional changes to Georgia's DUI law might come next year, said state Rep. Chuck Efstration, a Republican from Dacula.

“There is consideration being given to amending Georgia’s Constitution” to allow defendants’ refusal to take breathalyzer tests to be used against them in court, Efstration said. “Going forward, I expect more substantive policy discussions about other possible changes to strengthen DUI laws.”

Amending the state constitution would require two-thirds majorities in both the state House and Senate, followed by approval from a majority of Georgia voters.