The Georgia Supreme Court is the highest appellate court in the state. It often must give direction to the lower courts and to law enforcement authorities regarding the constitutionality of various criminal law statutes. The court recently issued a decision defining what are the parameters of a criminal defense in cases where there is a driver refusal to submit to a breath test. The law provides that such refusal will lead to a driver’s automatic license suspension. It is also true that a DUI can be legally proved in some cases without the support of breath test evidence.

In Georgia, there has also been a statute that allowed the prosecutor to admit into evidence at trial the fact that the defendant refused to take a breath test. The top appellate court decided unanimously that such a provision is unconstitutional because it violates the protection against self-incrimination. The decision was based on an interpretation of the state constitution.

The Georgia high court acknowledged the possibility that it may be harder for authorities to obtain convictions on DUI charges. The court stressed, however, the importance of the right against self-incrimination in the criminal justice system. The court pointed out that the right remains preserved and applicable despite the severity of the crime charged.

The decision appears to be based on sound constitutional reasoning in general on both a state and federal level.  However, criminal defense attorneys in state court often point out that the state constitution sometimes gives the accused greater protections than the federal constitution. The appellate courts in Georgia and other states have the prerogative of deciding that the state constitution is controlling and that it gives more protection to the individual than the federal constitution. However, a state clearly cannot use state law to give a criminal defendant less protection than is available under the federal constitution.