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Can the police use refusal of field sobriety tests against you?

One of the things that we’re looking at in the aftermath of the Elliott case in Georgia is how it is that it will affect other parts of the DUI case. So, there’s a case Mitchell versus State, I actually handled it in 2017 where we litigated whether or not the State could admit a person’s refusal to submit to field sobriety tests in the case against them. A challenge, the admissibility of the refusal to submit the fields on fourth amendment grounds. There’s a lot of cases in Georgia that say that you cannot comment upon a person’s refusal to submit to a search, pursuant to the fourth amendment. So, a person has a constitutional right to withhold consent to a search in any given case and that State can’t turn around and use that against them at trial. That’s sort of a basic principle of Georgia evidentiary rules. That’s just the way that our law has developed.

I challenged whether or not field sobrieties were in fact a search. And then whether or not you could use a person’s refusal to submit to that search against it. The court went through this whole lengthy discussion and found, ultimately that refusal of fields sobrieties, they were not in fact a search and therefore you could comment on that, pursuant to the fourth amendment, it was not a constitutional violation for you to comment on that refusal to submit to field sobrieties. I did not challenge them on the self-incrimination grounds of the Georgia constitution. That would have been the appropriate grounds to challenge them on. Aldrich versus State directly address this in a case that dealt with a defendant pre arrest being required to drive his truck, perform an act of driving his truck upon scales. And if I had challenged that under Aldrich and subsequently based upon Elliot, what we would have found is that I probably would’ve gotten a different result out of that part of the Mitchell case. So, whenever you have a client who refuses it, refuses to submit to field sobriety tests, make sure that you’re challenging that on self-incrimination grounds under the Georgia Constitution, paragraph 16.

If you’re raising that challenge, then you’re almost certainly going to have a result where the judge says, no State, you cannot use a person’s refusal to submit to field sobrieties pursuant to the self-incrimination provision of the Georgia Constitution, which protects you against both acts and statements. So, that’s the grounds that you really need to challenge the admissibility of that evidence. It’s also really important that you recognize that this challenge, based upon compelled acts you cannot be required to perform, or compelled to perform acts that may be incriminating against you, does not require a person to be in custody. So, many people have a misunderstanding of paragraph 16 and whether or not it applies to both pre arrest and post arrest acts. And the answer is absolutely, it applies to pre arrest acts as well. So, it does not require any way, shape or form that you be under arrest in order for that protection to allot to, for you to rely upon that. So, don’t be concerned about that at all, if that’s, if that’s what your, what your issue is.

If you have any questions or you have any thoughts about how Elliot can be further expanded to protect us against other pieces of evidence and the State maybe, using or trying to use against us, in DUI cases. Feel free to comment below, drop me a line, or give me a call. My name is Ben Sessions. My phone number is (470) 225-7710, again, (470) 225-7710. Thank you.



About the Author

Ben Sessions, Attorney at Sessions Law Group
Ben Sessions

I work to provide exceptional service, attention, and results to each of my clients. Most of clients come to me because they are in a completely overwhelming situation. They need someone that will do more than address their legal problems.


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