Greg Willis, Willis Law Firm, Atlanta (Courtesy photo)
The Georgia Supreme Court’s unanimous opinion Monday barring a drunken-driving defendant’s refusal to take a blood test from being used as evidence at trial is being portrayed as a bombshell ruling threatening to undermine law enforcement’s ability to keep impaired drivers off the road.
In fact, as Justice Keith Blackwell noted during oral arguments last year, an array of amicus briefs filed by the Office of the Attorney General, Prosecuting Attorneys’ Council of Georgia and district attorneys from Cherokee, Gwinnett and Athens-Clarke counties weighing in to support the state’s implied consent law presented a “sky is falling” scenario if the justices ruled exactly as they did.
But the lawyer who argued and won the case said he believed the outcome was likely all along.
“I would like to say that this was some magnificent legal work, but it’s really just straight black-letter law,” said Willis Law Group principal Gregory Willis. “My entire argument was that the Georgia Constitution has been interpreted this way since 1879. Every one of our constitutions has used the same language.”
Willis’ client, Andrea Elliott, was stopped by Athens police in 2015 and charged with driving under the influence of alcohol and other offenses. She was read the Georgia “Implied Consent Notice,” which notifies drivers they are required to submit to blood, breath or urine tests. Drivers also are told that refusal to comply can result in their license being suspended and that refusal can be offered as evidence at a criminal trial.
Elliott refused to take a breath test and was arrested and jailed.
Her lawyer filed a motion to suppress the evidence, which the trial court denied.
During oral arguments last April, Willis argued that the use of Elliott’s breath test at trial was a violation of her constitutional protections against self-incrimination under the U.S. Constitution’s Fifth Amendment and the Paragraph XVI of the Georgia Constitution.
Athens-Clarke County Chief Assistant Solicitor William Fleenor argued the requirement to take a test is not a “coerced action” but is instead part of the agreement between a driver and state laying out the duties and obligations necessary to drive in Georgia.
If the justices did feel there might be constitutional concerns, he said, the state has a compelling interest in keeping impaired drivers off the road. The statute is narrowly tailored to meet that interest and thus meets the “strict scrutiny” necessary to pass constitutional muster, he said.
Fleenor’s arguments were met with skepticism, particularly an assertion that his office could find no case law asserting the Fifth Amendment is a “fundamental right” that can be subjected to strict scrutiny.
Monday’s 94-page opinion overruling the lower courts harkened back to a 2017 ruling inOlevik v. State, S17A0738, that said forcing someone to take a breath test was unconstitutional.
Monday’s opinion, penned by Justice Nels Petersen, said Georgia’s Constitution actually goes beyond the U.S. Constitution’s guarantee against being forced to testify against oneself.
“Based on the well-established meaning given to the constitutional right against compelled self-incrimination and carried forward into subsequent state constitutions, we concluded that a breath test is an act incriminating in nature and, therefore, Paragraph XVI prohibits the State from compelling such a test,” according to the opinion.
Such evidence may not be introduced in a criminal trial, Petersen wrote, although he observed that the General Assembly may want to “revise the provisions of the implied consent law, particularly the content of the implied consent notice.”
Willis said he was encouraged by the justices’ strong reaction during oral arguments to the state’s suggestion that the Fifth Amendment may not be a fundamental right but also by the fact that it has no case law supporting its position.
“The argument really comes down to self-incrimination,” Willis said. “If you look at what the Fifth Amendment and Paragraph XVI protect, the rights are very similar. The state could not provide a single case under the Fifth Amendment or state Constitution where someone invoked their right prior to trial, and it was still submitted as evidence.”
“Whether it’s the right to not to blow into a machine, give a handwriting sample … they could not provide a single example,” he said. “They asked the court to reverse an unbroken line of cases back to 1879 and prior to that.”
The opinion noted that a blood or urine test can still be obtained if an officer gets a warrant, which happens “every day,” Willis said.
“I’m of the opinion that this implied consent warning should have been changed years ago,” Willis said.
“They need to take out that section about Georgia law ‘requiring’ you to submit,” he said. “You have a constitutional right to refuse testing.”
“I’m just proud of our Supreme Court for empowering the law as required,” he said.
Athens-Clarke County Solicitor Carroll Chisholm said officers there will adjust their procedure for DUI arrests accordingly.
“Our local law enforcement will continue to enforce the DUI laws here in Athens-Clarke County,” said Chisholm in an email.
“In light of the Elliott ruling, the only difference will be that officers will now read Implied Consent to request a blood test in all DUI cases instead of the previous practice of requesting breath tests in most DUI cases,” he said. https://finance.yahoo.com/news/lawyer-won-supreme-court-dui-052405761.html
Greg Willis, Willis Law Firm, Atlanta (Courtesy photo)