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State v Mitchell – State can not argue if not drunk should have taken test in DUI

State v. Mitchell, A13A1829, March 20, 2014.  A jury found Dantrell Mitchell guilty of DUI after the Prosecutor argued in closing that by refusing a DUI breath test the Defendant failed to take the opportunity to “prove his innocence.”  The Georgia Court of Appeals held that a Prosecutor arguing that a refusal to take a DUI breath test is a failure by the Defendant to take an opportunity to prove his innocence is both an improper argument by the Prosecutor and impermissibly shifts the burden to the Defendant.  The Court of Appeal cited Pinch v. State, 265 Ga. App. 1, 5(4), 593 SE 2d 1 (2003) where it was held that a Prosecutor argued that if the Defendant had taken the breath that there was a chance to show sobriety was both improper and impermissibly shifted the burden to Defendant.

-Author: George Creal