Did you know that Georgia’s Constitutional provisions against self-incrimination provides more rights than the 5th Amendment to the U.S. Constitution? What you don’t know might hurt you, especially if you are placed under arrest for DUI.

 

You probably have heard about the 5th Amendment and the Miranda warning read to some folks after arrest. You know, “you have the right to remain silent. Anything you say may be used against you….”

Well in Georgia, if you are under arrest, you can invoke your right vs. self- incrimination to say or do anything which may incriminate you.

Georgia Courts have long held that our Constitution protects one under arrest from doing an act vs. his/her will, which is incriminating in nature.

 

Please understand: this right is only invoked AFTER arrest; so Georgia courts have also held that one does not have to be read his “rights” Field Sobriety Evaluations are administered. Although of course you can and should always refuse to do these, as they are voluntary.

 

However, once you are arrested and charged with DUI, you can invoke your right vs. self- incrimination. This means you are informing the cop that you do not wish to do anything (which includes blowing into a breath machine at the jail) which could incriminate you.

 

In June 2016, 3 DUI cases were decided by the U.S. Supreme Court, under the heading of Birchfield. In these cases, the Court said in essence that the 4th amendment does not permit warrantless blood tests. In other words, without the consent of the accused, the cop should obtain a search warrant before drawing blood. However, the Court said that breath tests should be treated like any search AFTER arrest, and therefore the 4th Amendment prohibition vs. unreasonable searches does not apply; however, it would seem that the right vs. self=incrimination under the Ga. Constitution WOULD apply, because a person under arrest was being told they were “required” to perform an act which might incriminate them.

 

Something to consider if you find yourself under arrest for DUI and being told you have to do a breath test.