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Elliott v State – Elliott is not a fat kid with glasses who eats paste – Elliott is a constitutional rock star

Elliott v. State, S18A1204, Supreme Court of Georgia, February 18, 2019. In Elliott v. State, the Supreme Court of Georgia held that Art. 1, Sect. 1, Para XVI of the Georgia Constitutional prohibits the admission into evidence of the refusal of a compelled breath test under the Georgia Implied Consent law as an act of self-incrimination. […]

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State v Council – Court of Appeals concedes refusal nor compelled breath test admissible

In State v. Council, 343 Ga. App. 583, 586; 807 SE2d 504 (2017), on September 15th, 2016, Susan Council was involved in a multi-vehicle automobile collision. Cobb County Police were told by emergency medical technicians that they believed Ms. Council was under the influence of alcohol. Ms. Council was polite, admitted to drinking 2 glasses of […]

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Spencer v State – clues do not equate to BAC with out a proper Harper foundation

In Spencer v. State, 302 Ga. 133 (805 SE2d 886) (2017), the Georgia Supreme Court granted the petition for certiorari in Spencer to consider whether the Court of Appeals erred in holding that the trial court properly admitted a police officer’s testimony correlating the results of a horizontal gaze nystagmus (“HGN”) test with a numeric blood alcohol content […]

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Got a Breath test DUI take an Olevik

Olevik v. State, S17A0738, Supreme Court of Georgia, Decided: October 16, 2017.  Prior to Olevik v. State, No. S17A0738, 2017 WL 4582402 (Ga. Oct. 16, 2017), Georgia courts routinely recognized that the right to refuse a state-administered chemical test following a DUI arrest was not a constitutional right:  “As we noted, the United States Supreme Court ruled it […]

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Smith v State – DUI vehicular homicide must include lesser included option

Smith v. State, A17A1252, September 7, 2017. Quincy Alexander Smith was convicted of first-degree vehicular homicide for causing the death of another with a blood alcohol concentration over 0.08 grams within three hours of driving.  After dropping his wife and children off at a friend’s house, he was turning left into his subdivision when he […]

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Can I pick the test I take after a DUI arrest

Who gets to pick the test administered in a DUI arrest? The short answer is it depends. Let’s assume some hypothetical facts. First, the driver is arrested, Georgia Implied Consent rights are read and the Officer designates either a blood, breath, or urine test. Let’s assume that the police officer chooses a breath test.  When […]

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No right to an independent test if police get a warrant for blood

Hynes v. States, A17A0633, May 31, 2017.  James Hynes was charged with failure to maintain lane, DUI less safe, and DUI per se. Hynes filed a motion to suppress the results of a blood test obtained under a search warrant for the failure of the Cherokee County Sheriff’s Deputy to accommodate his request for an […]

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When you say I will only take a blood test in a Georgia DUI

Imagine a hypothetical, a driver is arrested for DUI in Georgia, Georgia Implied Consent is read and the Officer designates a breath test.  When the Intoxilyzer 9000 is set up, the driver states that he will not take a breath test but that he will only take a blood test.  No other rights are read […]

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DUI Breath tests are about to be Unconstitutional in Georgia

Oral Arguments in the Georgia Supreme Court were held in Olevik a/k/a Plevik v. State, S17A0738, on August 18, 2017. The arguments were very telling. The defendant was essentially asserting that Police can not compel acts under the Georgia Constitution, and wrapping your lips around a breath tube, directing air for a minimum period, and […]

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