## Facts

- A police officer stopped Andrea Elliott in August 2015 after observing traffic violations and noted the odor of alcohol and signs of impairment.
- Elliott admitted consuming alcohol earlier that day and was arrested for DUI.
- The officer read the implied-consent notice stating that refusal to submit to a state-administered breath test could be used as evidence at trial.
- Elliott refused the breath test.
- Before trial, Elliott moved to suppress evidence of her refusal, arguing that admitting refusal evidence would violate the Georgia Constitution’s protection against compelled self-incrimination.
- The trial court denied the motion, allowing the State to use the refusal at trial.

## Issues

1. Whether O.C.G.A. §§ 40-5-67.1(b) and 40-6-392(d) are unconstitutional, under Ga. Const. art. I, § I, para. XVI, to the extent they allow admission at a criminal trial of a defendant’s refusal to submit to a breath test.

## Decision

- The Supreme Court of Georgia reversed the trial court’s denial of Elliott’s motion to suppress.
- The Court held O.C.G.A. §§ 40-5-67.1(b) and 40-6-392(d) unconstitutional to the extent they permit admission of breath-test refusal evidence at a criminal trial.
- The Court concluded that Elliott’s breath-test refusal could not be used as evidence against her in the DUI prosecution.

## Legal Principles

- Georgia’s constitutional protection against compelled self-incrimination provides broader protection than the Fifth Amendment in the context of breath testing.
- Because the Georgia Constitution affords a right to refuse a chemical breath test, the State may not introduce the refusal as substantive evidence of guilt at a criminal trial.
- Statutes that authorize evidentiary use of breath-test refusals are invalid to the extent they penalize the exercise of the state constitutional right to refuse.
- The ruling addresses breath tests and does not, by itself, resolve admissibility of refusal evidence for other types of chemical tests or administrative licensing consequences.

## Conclusion

The Georgia Supreme Court held that, under the Georgia Constitution’s self-incrimination clause, a DUI suspect’s refusal to submit to a state-administered breath test may not be admitted as evidence at a criminal trial, rendering the relevant statutory authorizations unconstitutional to that extent.


Elliott v. State, 305 Ga. 179, 824 S.E.2d 265 (Ga. 2019)