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Alcohol and criminal behavior often accompany each other as anyone with any experience with the justice system (or intoxicated people in general) can attest to. A significant percentage of the population would probably say their worst decisions and mistakes came about while under the influence of booze or other intoxicants, and crime statistics would back this up. Alcohol-related crime statistics in the United States compiled by AlcoRehab show around 500,000 cases of alcohol related violence every year and also demonstrate that an incredible 86% of homicides and 60% of sexual abuse or rape cases were committed under the influence of alcohol.

Because of the common presence of alcohol in crime, for a great number of criminal prosecutions and civil lawsuits, a significant factor for the trier of fact to determine is whether the defendant was intoxicated or under the influence of alcohol at the time of his alleged crime or misdeed. In most states, law enforcement has sought to determine the amount of alcohol in a person’s system through various tests of the person’s breath, blood, or urine. In many jurisdictions, the purpose of such tests is to ascertain the ratio of alcohol to blood in a person’s body because certain presumptions as to intoxication arise from certain alcohol to blood ratios. Although both blood and urine samples may be tested in order to determine the presence of alcohol in the blood of a suspect, and such tests are in fact conducted on occasion by the police, the use of air (or breath) samples has developed as the most common method of determining the amount of alcohol in a person’s system. Breath tests are prevalent because they are less obstructive and unobtrusive when compared to other methods, and provide for immediate results. A person, simply by blowing or breathing into certain equipment, can provide a sample of the air in his body. Then an analysis of the air can be made and the findings can be correlated to an alcohol to blood ratio.

One of the most common alcohol-related offenses is driving under the influence (DUI). Two recent decisions handed down by the Supreme Court of the United States and the Georgia Supreme Court covered the same area of law concerning constitutional rights and the scourge of drunk driving, and, not for the first time, the two courts came to opposite conclusions. What may surprise some scholars unfamiliar with DUI laws in Georgia is that the Georgia Supreme Court actually expanded constitutional protections concerning criminal rights while the Supreme Court of the United States did not. The constitutional right in question is the ancient and often thorny right governing self-incrimination by criminal defendants, memorialized in the Fifth Amendment to the United States Constitution and Article 1, Section 1, Paragraph XVI of the Georgia Constitution.

In Elliott v. State, the Georgia Supreme Court held that the admission of evidence consisting of a suspect’s refusal to take a breathalyzer test while under the suspicion of driving under the influence violated the state constitution’s prohibition against self-incrimination. The court in Elliott also further expanded the court’s controversial ruling in Olevik v. State, in which the court held that the right against self-incrimination applied to compelled breath tests and that a suspect’s right to refuse such a test was a constitutional right. The decision in Olevik overruled decades of previous Georgia case law. Conversely, in Mitchell v. Wisconsin, the Supreme Court of the United States upheld its previous rulings regarding this matter, stating that compelled blood alcohol content (BAC) tests do not violate a defendant’s right against self-incrimination, and that a defendant’s refusal to submit to a BAC test can be used as evidence against the defendant at trial.

This Comment will compare and analyze Georgia law, federal law, and the law of other jurisdictions concerning their approaches to the admission of BAC tests and how such admissions relate to constitutional rights. This Comment will also consider what effect, if any, this type of law has on DUI statistics, crash statistics, and criminal prosecutions relating to alcohol. This Comment will also address the practicality of the Georgia ruling as it relates to the citizens of Georgia and the ability of law enforcement to enforce the laws of the state. The Comment will show that the Georgia Supreme Court’s ruling in Elliott is markedly different than the majority of other states and the federal judiciary. The reasoning behind the rule, as well as the rule itself, is of new development in the state, though the court went back to common law over a century old to reach its conclusion. This Comment will also argue that the court’s attempt to consolidate the realities of the present with the constitutions of the past serve primarily to confuse Georgia’s citizens, frustrate its law enforcement, and fascinate its lawyers.