The Georgia Supreme Court issued a ruling recently that could make it more difficult for prosecutors to prove a DUI. Georgia has a law that allows an officer to ask a person to take a blood or breath test and if the driver refuses to take a test, then their driver’s license is revoked for a year. The court recognized that there should be a distinction between DMV rules and the law as it relates to the Fourth Amendment.
The Fourth Amendment protects citizens from unreasonable searches and seizures. Taking a sample of a person’s blood or breath is a search under the Fourth Amendment. Searches generally require consent or a warrant. The Georgia Court’s decision would require an officer to advise a driver that the test is voluntary, obtaining consent from the driver for the sample. Or, the officer may get a search warrant to compel the testing. This might reduce the number of people who agree to the testing.
You may be asking, if this was in Georgia, how does it apply in Colorado? Georgia law does not apply in Colorado, so this case does not have a direct impact on DUI cases here, but it does signal a possible change in a way of thinking that may find its way to Colorado.
Colorado has a law very similar to Georgia’s law about refusing testing and the revocation of your driver’s license. In Colorado, the law is called Express Consent. If an officer has probable cause to believe a driver has committed a DUI, the officer may ask the driver to take a blood or breath test and if the driver refuses, DMV will revoke their driver’s license. While a person can refuse the testing, there is currently no part of the advisement that informs a driver that the testing is voluntary. This is because, under the current law, the testing isn’t really voluntary. In fact, in Colorado, there is a jury instruction in refusal cases that tell a jury that they may use the fact that the driver refused against him or her at trial rather than telling the jury that the driver has a Fourth Amendment right to be free of unreasonable search and seizure.