Georgia Court of Appeals Rules Refusal to Take PBT Cannot Be Used Against You

STATE V. BRADBERRY, 2020 GA. APP. LEXIS 560 (2020)

On October 7, 2020, the Georgia Court of Appeals issued a decisive ruling in the realm of D.U.I. law. In the ongoing battle of admissibility and forced breath tests, citizens scored a victory concerning portable breath tests.

THE CASE: THE HOLDING

In State v. Bradberry, 2020 Ga. App. LEXIS 560 (2020), the Court of Appeals held that “[b]ecause [citizens] ha[ve] the right to refuse to provide incriminating evidence by performing . . . an affirmative act [such as blowing into a portable breath test device] under Paragraph XVI [of the Georgia Constitution], the admission of evidence of [a citizen’s] refusal [to take the PBT] violates the state constitutional right against self-incrimination.” Bradberry, 2020 Ga. App. at 560.

THE CASES: THE FACTS

In Bradberry, the defendant was initially involved in a traffic accident, which turned into a D.U.I. investigation by law enforcement. Id. During the investigation, the officer requested the defendant to take an alco-sensor preliminary breath test (PBT) on the side of the road. Id. After the officer explained the procedure, the defendant refused to take the PBT. Id. The defendant was subsequently arrested and charged with D.U.I. after performing certain field sobriety exercises. Id.

THE CASE: THE TRIAL

At trial, the defendant filed a motion to suppress his refusal to take the PBT, and the trial court denied the motion. Id. An appeal followed, and the Court of Appeals reversed the decision of the trial court. Id.

THE CASE: THE COURT OF APPEALS

Quoting Olevik v. State, 302 Ga. 228 (2017), the Court of Appeals explained as follows: “The Georgia Constitution provides that ‘no person shall be compelled to give testimony tending in any manner to be self-incriminating. [T]his state constitutional protection applies to more than mere testimony; it also protects [a person] from being forced to perform acts that generate incriminating evidence.” Bradberry, 2020 Ga. App. at 560 (quoting Olevik, 302 Ga. at 228, 235) (alteration in original).

Based on the previous holdings in this State, coupled with the provisions of the Georgia Constitution, the Court of Appeals held as follows: “Because [citizens] ha[ve] the right to refuse to provide incriminating evidence by performing . . . an affirmative act [such as blowing into a portable breath test device] under Paragraph XVI [of the Georgia Constitution], the admission of evidence of [a citizen’s] refusal [to take the PBT] violates the state constitutional right against self-incrimination.” Bradberry, 2020 Ga. App. at 560.

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