Drunk driving in GA: What happens if a driver refuses a breath test?

Breath tests are often used to gather evidence to support criminal charges, but are they constitutional?

Drunk driving is illegal in every state in the country. States have enacted various laws to deter this practice, including a set of laws that deal with a legal concept referred to as informed consent. Informed consent laws essentially state that if those who drive vehicles on the nation's roadways agree to submit to tests to establish if they have been drinking. A failure to submit to the tests can result in punishment.

A recent court case questioned just how severe the punishment for refusing to take a drunk driving test can be. It specifically questioned whether or not requiring a driver to provide a breath or blood sample to test for alcohol was a violation of the driver's Fourth Amendment rights.

Step 1: A review of the protections granted by the Fourth Amendment

The Fourth Amendment provides the protection against unreasonable searches and seizures. In order to conduct a search, officers must have probable cause of criminal activity. Without probable cause, the search cannot be conducted.

There are exceptions to this rule, including the ability of officers to conduct a search incident to an arrest and consent to the search.

Step 2: Is a breath test or blood test a search

The Supreme Court of the United States (SCOTUS) has ruled in previous cases that alcohol testing is a search. As a result, the answer to this question is yes, these tests do qualify as a search.

Step 3: Does this type of search qualify for an exception

Generally, such a search would require a warrant. However, SCOTUS ruled that courts should consider how much the person's privacy is violated in combination with whether the search would promote a "legitimate government interest." In cases involving suspicion of drunk driving, the "legitimate government interest" is the high number of fatalities connected to drunk driving accidents. As such, the court has ruled that breath tests weigh in favor of meeting the "legitimate government interest." However, blood tests were found to be a violation and require a warrant.

The court explained that while breath tests require little more effort than blowing up a balloon, blood tests are "significantly more intrusive" since they require the driver's skin to be pierced and active extraction of a sample. Furthermore, this sample can provide significantly more information than a breath sample.

What does this ruling mean for those who face drunk driving charges in Georgia?

Rulings by the Supreme Court are the law throughout the country. As such, this holding will apply in Georgia. This case provides an example of the evolving nature of criminal law. If you are facing criminal charges, an experienced attorney can review the charges and apply the latest changes to the law to your case to better ensure a more favorable outcome.