Judging Traffic (February 2019)
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Georgia: State Constitution Prohibits Using Refusal To Take Breathalyzer In Criminal Case

Earlier this month the Georgia Supreme Court handed down its decision in Elliott v. State holding that a driver's refusal to take a breathalyzer test cannot be held against them in a criminal proceeding. The Georgia high court noted that while under U.S. Supreme Court precedent the Fifth Amendment does not prohibit using a refusal as part of a criminal proceeding, the Georgia Constitution's protection against compelled self-incrimination is broader. Writing for a unanimous court, Justice Nels S.D. Peterson acknowledged the state's interest in prosecuting DUI offenses but that "the right to be free from compelled self-incrimination does not wax or wane based on the severity of a defendant’s alleged crimes." Elliott builds on a 2017 Georgia Supreme Court (Olevik v. State) which held the state's constitution prohibits both self-incriminating testimony but "also protects us from being forced to perform acts that generate incriminating evidence." In a concurrence, Justice Michael P. Boggs noted that the decision was limited to use of refusal of a breathalyzer in a criminal proceeding and that the ruling did not apply to tests of a driver's blood and the possible use of the refusal as part an administrative proceeding concerning license suspension.

North Dakota: Implied Consent Advisories Must Not Mislead Or Coerce

The North Dakota Supreme Court has held that when an officer issues an implied consent advisory to a driver the language used must not "materially mislead or coerce the driver." The court in State v. Dowdy upheld the lower court's judgment that Dowdy had voluntarily consented to be tested however Justice Daniel Crothers examined the language of the implied consent advisory used (emphasis added by court)

"As a condition of operating a motor vehicle on a highway, or public or private area to which the public has a right of access to, you have consented to taking a test to determine whether you are under the influence of alcohol or drugs. North Dakota law requires you to submit to a chemical test to determine whether you are under the influence of alcohol or drugs. Refusal to take the post-arrest breath test as directed by a law enforcement officer is a crime punishable in the same manner as DUI, and includes being arrested. I must also inform you that refusal to take the test directed by a law enforcement officer may result in a revocation of your driver's license for a minimum of 180 days and potentially up to three years."

The North Dakota Supreme Court had previously upheld language similar to that used in the first sentence (Korb v. N.D. Dep't of Transp., 2018 ND 226, ¶ 9, 918 N.W.2d 49) but the question was whether the additional "being arrested" language changed matters. The court held that because Dowd was already under arrest for driving under the influence when the "being arrested" language was used, nothing in the record indicated Dowdy would have been arrested again for refusal to take a chemical breath test.

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