All lawyers with significant DUI practices and all judges in Georgia that deal with DUI’s have been anxiously awaiting the Georgia Supreme Court’s opinion in Elliott v. The State (Docket No. S18A1204). Oral argument was conducted in the Georgia Supreme Court in April, 2018.
What’s the big deal and what is the Elliott Issue?
Some background is necessary to understand the issue.
1. In Georgia when someone is arrested for DUI they are read the Georgia Implied Consent advisement (O.C.G.A. §40-5-67.1):
“Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.08 grams or more, your Georgia driver’s license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your ( designate which tests) under the implied consent law?”
2. In 2015 in Williams v. State the Georgia Supreme Court said an individual has the right to refuse chemical testing under the terms of the Fourth Amendment (Search and Seizure) to the United States Constitution. Thus, refusing chemical testing is the exercise of a constitutional right under the United States Constitution.
3. In 2017 The Georgia Supreme Court in Olevik v. State said that under the Georgia Constitution’s right against self-incrimination an individual had the right to refuse chemical testing. Thus, refusing chemical testing is the exercise of a constitutional right under the Georgia Constitution.
4. The United States Supreme Court (U.S. v. Goodwin) (1982) has said an individual may not be punished for the exercise of a constitutional right.
“To punish a person because he has done what the law plainly allows him to do is a due process violation “of the most basic sort.” Bordenkircher v. Hayes, 434 U.S. 357, 363. In a series of cases beginning with North Carolina v. Pearce and culminating in Bordenkircher v. Hayes, the Court has recognized this basic — and itself uncontroversial — principle. For while an individual certainly may be penalized for violating the law, he just as certainly may not be punished for exercising a protected statutory or constitutional right.”
BUT Georgia tells arrested individuals their refusal (exercise of a constitutional right) will be used as evidence against them. Seems like punishment doesn’t it? IS THAT PROPER?