Parts of Georgia’s law that allows a person’s refusal to submit to a breath test in a DUI stop were ruled unconstitutional in a unanimous state Supreme Court decision issued Monday.

The state Supreme Court decision said that a person’s right against self-incrimination under the Georgia Constitution prevents prosecutors from bringing up in trial a person’s refusal to blow into a breathalyzer.

In the case appealed to the court, the state was prosecuting Andrea Elliott for driving under the influence of alcohol. The case dates to 2015 when Elliott was stopped by a police officer in Clarke County, Georgia after she was observed committing traffic violations. Elliott refused to submit to a breathalyzer test and she was arrested under Georgia’s “implied consent notice.”

The implied consent notice states that drivers are “required 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 a driver refuses the testing, their Georgia driver’s license or privilege to drive in the state will be suspended for a minimum of one year. In addition, if you refuse the test, your refusal can be used against you at trial.

Elliott’s attorney filed a motion to suppress her refusal of the test because using it against her would violate her right against self-incrimination under the Georgia Constitution. After losing at the trial court level, her attorney appealed the issue to the Georgia Supreme Court.

The state Supreme Court had previously ruled that a person’s right against self-incrimination prevented the state from forcing someone to submit to a chemical breath test (Olevik v. State 2017). In the Elliott case, the Supreme Court looked at the history surrounding the issue and examined cases dating back to 1879 and specifically looked at the Olevik case.

The court stated in Monday’s opinion, “after extensive review of the historical record and our case law…our state constitutional right does prohibit admission of evidence that Elliott refused a breath test.”

“This Court cannot change the Georgia Constitution, even if we believe there may be good policy reasons for doing so; only the General Assembly and the people of Georgia may do that. And this Court cannot rewrite statutes. This decision may well have implications for the continuing validity of the implied consent notice as applied to breath tests, but revising that notice is a power reserved to the General Assembly.”

The court continued, “Consequently, we conclude that §§ 40-5-67.1 (b) and 40-6-392 (d) are unconstitutional to the extent that they allow a defendant’s refusal to submit to a breath test to be admitted into evidence at a criminal trial.”

In a concurring opinion issued by Justice Michael Boggs, he sought to clarify a few areas related to the decision stating:

“the scope of these decisions is limited to chemical tests of a driver’s breath; they do not apply to tests of a driver’s blood…Additionally, the holding that a driver’s refusal to take a breath test may not be used in a criminal proceeding does not forbid its use in an administrative proceeding concerning suspension of a driver’s license….” Boggs continued, ““that Georgia law ‘requires’ the driver to submit to breath testing; that the ‘refusal to submit…may be offered into evidence’ against the driver at trial; and that the driver’s license ‘may be suspended (as opposed to ‘shall’) if the driver submits and the results indicate an alcohol concentration above a prohibited level – are likely to become problematic in future cases as a result of Olevik or the Court’s decision today.”

Justice Boggs said as a result of the decision issued Monday and the Olevik decision, the Georgia General Assembly, “may wish to revise the provision of the implied consent law, particularly the content of the implied consent notice.”