Most people who are pulled over for suspicion of drunk driving take a breathalyzer-type test when an officer pulls out the tool that measures blood alcohol concentration (BAC). Some genuinely don’t believe they’re over the legal limit. Others are simply intimidated by law enforcement officers. Many don’t think they have the option to refuse it.
In fact, it’s not a crime to refuse a breath or blood test in Georgia if police don’t have a warrant for it (which they typically don’t in a traffic stop). However, it is grounds for suspending a person’s driver’s license. That refusal can also be used as evidence to prosecute a person for DUI.
A Georgia Supreme Court case
Last year, the Georgia Supreme Court addressed the question of whether it was a violation of a person’s constitutional rights to use a person’s refusal to take a test against them in court. They ruled that it was not.
The case that made it to the high court involved a Fulton County woman who claimed that using her refusal to take a blood test as evidence against her was a violation of her right to protection from unreasonable search and seizure in the Fourth Amendment and her Fifth Amendment right to protection against self-incrimination.
Although the justices ruled unanimously against the defendant, several wrote a concurring opinion noting reasons why a person who wasn’t under the influence might refuse to take a test, including a fear of needles. Of course, a defendant could always present that argument at trial.
A person suspected of DUI can be arrested without a test
It’s important to note that even though someone can’t be arrested for refusing to take a breath or blood test without a warrant, police can still arrest them for suspicion of DUI based on other factors. These include their driving behavior that caused the stop and whether they act, look or smell like they have been drinking or using drugs.
Certainly, the best course of action is not to drive after consuming any alcohol or drugs. Anyone, however, can potentially find themselves facing police officers who want to give them a breathalyzer test. It’s smart to know the law before having to make a decision in the moment. It’s also smart to get experienced legal guidance to protect your rights as early as possible if you are arrested.