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Criminal defense: Refusal to test can't be used as evidence

When police officers pull over a driver suspected of being under the influence, they generally ask that individual to submit to some kind of blood-alcohol content testing. Most people in Georgia are probably familiar with the Breathalyzer test, which is commonly used during roadside testing. But what happens to those who refuse to submit to Breathalyzer testing? According to Georgia's Supreme Court, refusing a test cannot be used as evidence, which may be important for some people's criminal defense planning.

In 2015, police arrested and charged a woman with DUI. At the time of her arrest she refused to submit to a requested breath test. The prosecutor on that particular case tried to use her refusal as evidence during a trial, but she argued that it should not be allowed. Her argument was that allowing that evidence would violate her constitutional rights, which protect her -- and everyone -- from self-incrimination.

The matter ultimately ended up before the state's Supreme Court. The court unanimously agreed that the state's constitution protects the woman and all others from self-incrimination even when refusing breath tests. One of the justices acknowledged that prosecuting DUIs could be slightly more difficult because of that ruling, but that did not mean that the application of the constitution could be based on the severity of a person's criminal charges.

While a breath test refusal cannot be used as evidence during criminal court proceedings, it can still be brought up during administrative hearings. These hearings are where some Georgia drivers accused of drunk driving can potentially maintain their driving privileges. Defendants who are unclear of their rights and what can and cannot be used as evidence against them may want to consider speaking with an experienced criminal defense attorney.

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