DUI Breath Test Refusal – What does a refusal mean?

By Ben Sessions on December 6th, 2014 in Uncategorized

A frequent question that I receive from potential DUI clients is this: “I was arrested for DUI and I refused to submit to the breath test.  Does that mean that I am guilty of DUI?”  This is a completely fair question and, fortunately for us, breath test refusal is still favorable to the defendant in Georgia.  The except below is from Duelmer v. State, 265 Ga. App. 3423, 593 S.E.2d 878 (2004).

In Baird v. State, 260 Ga.App. 661, 580 S.E.2d 650 (2003), this Court disapproved the following jury charge:

In any criminal trial the refusal of the defendant to permit chemical analysis to be made of his blood, breath, urine or other bodily substance at the time of his arrest shall be admissible as evidence against him. I further charge you that the refusal itself may be considered as positive evidence creating an inference that the test would show the presence of alcohol or other prohibited substances which impaired his driving. However, such an inference may be rebutted.

Id. at 662, 580 S.E.2d 650.

The court held that the addition of the phrase “which impaired his driving” allowed the jury to infer not only that the test would have shown the presence of alcohol in the body, but that the alcohol impaired his driving. (Emphasis omitted.) Id. at 663, 580 S.E.2d 650. The jury instruction, therefore, invaded the province of the jury and shifted the burden of proof to the defendant, forcing him to present evidence to rebut the inference. See Stepic v. State, 226 Ga.App. 734, 735, 487 S.E.2d 643 (1997).

In this case, the court charged the jury:

I charge you that in any criminal trial the refusal of the defendant to permit chemical analysis to be made of his blood, breath, urine or other bodily substance at the time of his arrest shall be admissible as evidence against him. I further charge you that the refusal itself may be considered as positive evidence creating an inference that the test would show the presence of alcohol or other prohibited substance which impaired his driving, however, such inference may be rebutted.

The charge contains the language that was specifically disapproved of in Baird, and therefore, the judgment must be reversed.

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The Sessions Law Firm
3155 Roswell Rd., Ste. 220
Atlanta,
GA
30305
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