NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: March 13, 2025
S24A1373. THE STATE v. DIAS.
ELLINGTON, Justice.
Christine Dias stands accused in the State Court of Fulton
County of driving under the influence of alcohol to the extent that it
was less safe for her to drive, OCGA § 40-6-391 (a) (1), and other
traffic offenses. Dias moved to suppress evidence that she refused
the arresting officer’s request to submit to a blood test and to declare
OCGA § 40-6-392 (d), which provides that the refusal of a defendant
to submit to a blood test at the time of her arrest for DUI “shall be
admissible in evidence against [her,]” unconstitutional. After a
hearing, the trial court granted Dias’s motion, on the basis that
OCGA § 40-6-392 (d) is unconstitutional, and ruled that the bloodtest refusal evidence is inadmissible at her trial. The State appealed
to the Court of Appeals.1 The Court of Appeals transferred the case
to this Court, based on its determination that the trial court directly
and distinctly ruled on the novel constitutional question at issue.2
The material facts, as developed at the hearing on Dias’s
motion to suppress, are undisputed. On April 10, 2020, a law
enforcement officer arrested Dias in Fulton County on suspicion of
driving under the influence of alcohol, read Dias the statutory
Implied Consent notice for drivers aged 21 years and over,3 and
requested that Dias submit to a blood test. Dias refused to submit to
a blood test, and no test was performed. In her motion to suppress
1 Provided specified procedural requirements are satisfied, as they were
here, “[a]n appeal may be taken by and on behalf of the State of Georgia from
the superior courts . . . [f]rom an order, decision, or judgment excluding any . . . evidence to be used by the state at trial[.]” OCGA § 5-7-1 (a) (5).
2 See Ga. Const. of 1983 Art. VI, § VI, Par. II (1) (This Court “shall
exercise exclusive appellate jurisdiction in . . . all cases in which the
constitutionality of a law, ordinance, or constitutional provision has been
drawn in question.”); Nathans v. Diamond, 282 Ga. 804, 807-808 (2) (654 SE2d
121) (2007) (“It is well established that this Court does not ever pass upon the
constitutionality of an Act of the General Assembly unless it clearly appears in
the record that the point was directly and properly made in the court below
and distinctly passed on by the trial judge.” (citation and punctuation
omitted)).
3 See OCGA §§ 40-5-55 (a); 40-5-67.1 (b) (2).
2
evidence that she refused the requested blood test, Dias argued that
there were no exigent circumstances to justify the warrantless
search involved in a state-administered blood test and that, in
refusing the test, she “was simply invoking her right under the
Fourth Amendment not to be subjected to an unlawful search.” Dias
argued that “[s]uch assertion of a constitutional right cannot be used
against her at trial as it affects her 5th Amendment Due Process
rights; her 4th Amendment right against unreasonable searches and
seizures; and Art. I, Sec. I, Par. XVI of the Georgia Constitution.” 4
The trial court determined that it was required to follow
clear, unequivocal law as set out by Georgia’s Supreme
Court. A warrant is required for a blood draw, absent
exigent circumstances or consent. Olevik, [302 Ga. 228
(806 SE2d 505) (2017),] and Williams, [296 Ga. 817 (771
SE2d 373) (2015)]. Whatever the wisdom of earlier
decisions involving forced surgery and blood draws in
other contexts, or in later cases involving breath and
urine, which rely on a defendant’s affirmative
participation, Olevik and Williams are squarely on point.
“Georgians do have a [constitutional] right to refuse to
consent to warrantless blood tests, absent some other
exception to the warrant requirement.” Olevik, 302 Ga. at
233. . . . The Court therefore finds that OCGA § 40-6-392
4 Ga. Const. of 1983, Art. I, Sec. I, Par. XVI provides: “No person shall be
compelled to give testimony tending in any manner to be self-incriminating.”
3
(d) is not constitutional as applied to Dias when viewed in
light of Williams and Olevik. A blood draw is a search, and
the burden rests upon the State to show that a
warrantless search is constitutional under these
circumstances. Williams[,] 296 Ga. [at] 819[.] The State
has not carried this burden; no facts were elicited to show
a warrant, consent or exigent circumstances. Where a
person exercises her constitutional right against selfincrimination same is not admissible at trial, Elliott v.
State, 305 Ga. 179 [(824 SE2d 265)] (2019), but the
statute, OCGA § 40-6-392 (d), makes no provision for
exclusion where these are not shown. Accordingly, the
Court GRANTS the motion, finding the statute
unconstitutional and Dias’ refusal inadmissible at trial.
(Emphasis in original.)
On appeal, the State contends that introducing a blood-test
refusal into evidence in a DUI case “does not violate the Fifth
Amendment nor Article I, Sec. I, Para. XVI of the Georgia
Constitution [of 1983 (‘Paragraph XVI’)].” And the State contends
that such use of a blood-test refusal in a DUI case “does not offend
search and seizure principles” and “is allowable pursuant to the
Fourth Amendment of the United States Constitution as well as
Article I, Sec. I, Para. XIII of the Georgia Constitution [of 1983].”
The State argues that the trial court therefore erred in excluding
Dias’s refusal to take a blood test “by finding that said refusal was
4
the product of an illegal, warrantless search in violation of the
Fourth Amendment guarantee against unreasonable searches and
seizures as well as the Fifth Amendment protection against selfincrimination and the State equivalent found at [Paragraph XVI].”
To the extent that the trial court granted Dias’s motion on the
basis that, under Elliott, the State is precluded from introducing at
trial evidence that a DUI suspect refused to submit to a blood test
because such refusal constitutes the exercise of the right against
self-incrimination under Paragraph XVI, the trial court erred. In
Elliott, we held only that “Paragraph XVI precludes admission of
evidence that a suspect refused to consent to a breath test.
Consequently, OCGA §§ 40-5-67.1 (b) and 40-6-392 (d) are
unconstitutional to the extent that they allow a defendant’s refusal
to submit to a breath test to be admitted into evidence at a criminal
trial.” Elliott, 305 Ga. at 223 (VI) (E) (emphasis added). See Olevik,
302 Ga. at 244 (2) (c) (iii) (“Compelling a defendant to perform an act
that is incriminating in nature is precisely what Paragraph XVI
5
prohibits.”).5 We did not hold in Elliott, or in any other case, that
evidence that a DUI suspect asserted her right under the Fourth
Amendment to refuse to submit to a warrantless blood test is
inadmissible at trial on the basis that, as Dias claims, use of such
evidence would infringe upon her right against unreasonable
searches and seizures under the Fourth Amendment, her right to
due process under the Fifth Amendment, and Paragraph XVI. 6 The
5 See also Awad v. State, 313 Ga. 99, 103 (3) (868 SE2d 219) (2022)
(“Under Elliott, whether Paragraph XVI requires a court to grant a motion to
suppress a defendant’s refusal to submit to a state-administered chemical test
turns on whether the defendant would have been required to perform an act to
generate the test sample.” A urine test requires a defendant to “urinate into a
container, at the time and in the manner directed by the State, to ensure that
the State can obtain a usable test sample for chemical analysis.” Because a
urine test requires “the defendant to affirmatively give the State evidence from
the defendant’s body in a particular manner that is neither natural nor
automatic[,] . . . Paragraph XVI affords a [DUI] defendant a right to refuse to
submit [to a state-administered urine test] and a right to suppress evidence of
the defendant’s refusal” under our holdings in Olevik and Elliott. (citations
omitted)).
6 See La Anyane v. State, __ Ga. __, __ (2) (a) (ii) (Case No. S24A1112,
decided March 4, 2025) (“It is true that we held in Elliott v. State, 305 Ga. 179
(824 SE2d 265) (2019), that OCGA § 40-6-392 (d) is unconstitutional as applied
to breath tests, because under the Georgia Constitution, providing deep lung
air for a breath test is a self-incriminatory act, and a person’s exercise of her
right not to incriminate herself cannot be used against her. See Ga. Const. of
1983, Art. I, Sec. I, Par. XVI; Elliott, 305 Ga. at 209 (IV). But we have never
held that drawing someone’s blood implicates the right against compelled selfincrimination under the Georgia Constitution, and the United States Supreme
6
novel constitutional question that was raised below — whether the
evidence at issue is inadmissible on grounds other than the selfincrimination holdings in Olevik and Elliott — was not directly and
distinctly ruled on by the trial court. That remains an open
question,7 on which we express no view today.
Accordingly, we vacate the trial court’s judgment excluding the
blood-test refusal evidence, and we remand to the trial court for
consideration of any other basis for excluding such evidence raised
in the proceedings below.
Judgment vacated, and case remanded. All the Justices concur.
Court has rejected the argument that the federal right against compelled selfincrimination is implicated by a blood draw.”); Elliott, 305 Ga. at 224, Boggs,
J., concurring (“[T]he scope of [Elliott and Olevik] is limited to chemical tests
of a driver’s breath; they do not apply to tests of a driver’s blood.”); Olevik, 302 Ga. at 232, 233 n.2 (“Nothing we say here should be understood as casting any
doubt on Strong [v. State, 231 Ga. 514 (202 SE2d 428) (1973),]’s selfincrimination holding.”); Strong, 231 Ga. at 518 (“[T]he use of the results of [a] blood test against [the defendant] at trial [did not] requir[e] him to give
evidence against himself. [The defendant] was not compelled or forced to
remove the incriminating blood. The removal of a substance from the body
through a minor intrusion does not cause the person to be a witness against
himself within the meaning of Fifth Amendment protection and similar
provisions of Georgia law.”), overruled on other grounds by Williams, 296 Ga.
at 821.
7 See State v. Randall, 318 Ga. 79, 81-83 (2) (897 SE2d 444) (2024); State
v. Randall, 315 Ga. 198, 200 (1) (880 SE2d 134) (2020).
7
PETERSON, Presiding Justice, concurring.
I fully concur in the Court’s opinion today that vacates the trial
court’s order and remands the case. That order declared that a
Georgia statute violates the Georgia Constitution on a search and
seizure basis but grounded that conclusion in inapplicable precedent
about compelled self-incrimination that expressly said it didn’t
apply to search and seizure issues. Instead, the state constitutional
issue argued below is novel; the trial court did not engage with the
novelty. Vacatur and remand for consideration of the actual novel
issue is appropriate in such circumstances. But it’s also appropriate
for another reason: our caselaw has over and over again made clear
that Georgia courts should not reach a constitutional challenge to a
state statute if there’s an alternative ground on which to decide the
case. See, e.g., State v. Randall, 318 Ga. 79, 81-82 (2) (897 SE2d 444)
(2024); Sons of Confederate Veterans v. Henry County Bd. of
Commissioners, 315 Ga. 39, 65 (2) (d) (i) (880 SE2d 168) (2022)
(citing Deal v. Coleman, 294 Ga. 170, 171 (1) n.7 (751 SE2d 337)
(2013)).
8
There may well be such a ground here. The Georgia Evidence
Code provides that relevant evidence may be excluded if, among
other things, “its probative value is substantially outweighed by the
danger of unfair prejudice[.]” OCGA § 24-4-403 (“Rule 403”). It
seems to me that evidence of a criminal defendant’s refusal to
consent to a warrantless search may be relevant to whether the
defendant believed a search would have discovered incriminating
evidence, in that it may have at least more than zero probative value
that the defendant was conscious of guilt. See Olds v. State, 299 Ga.
65, 75 (2) (786 SE2d 633) (2016) (explaining that relevance “is a
binary concept — evidence is either relevant or it is not” and that
evidence is relevant when “it has ‘any tendency’ to prove or disprove
a fact” (emphasis in original)).
But Rule 403 is about weighing the probative value of relevant
evidence against the danger of unfair prejudice that evidence poses.
And probative value is relative, not binary; as distinguished from
relevance, “the probative value of evidence derives in large part from
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the extent to which the evidence tends to make the existence of a fact
more or less probable.” Olds, 299 Ga. at 75 (2) (emphasis in original).
Evidence that someone refuses to consent to a warrantless
search may be relevant in the sense that it provides nonzero
probative value to prove consciousness of guilt. But it seems to me
that the probative value of that evidence will rarely be more than
barely nonzero. There are a host of reasons why a completely lawabiding Georgian may decline to consent to a warrantless search:
• They might be busy.
• They might be in a bad mood.
• They might be late — to work, to pick up a child, or some
other important errand.
• They might be afraid of, or suspicious of, law enforcement,
and therefore wary of prolonging their encounter.
• They might have a deeply held appreciation for our hardwon constitutional rights and are simply declining on
principle.
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• They might have a host of other reasons that the cost of
publishing these opinions renders unwise for me to
continue enumerating.
• And when the warrantless search for which consent is
requested involves needles puncturing their skin — as the
one here did — they might just have a thing about needles
and/or the sight of their own blood.
All of those are perfectly good reasons not to consent. None of those
reasons offer any basis for suspecting the nonconsenting person of
crime. And so the mere fact that a person asked by law enforcement
if they will allow a warrantless blood draw says “no” — an answer
both the United States and Georgia Constitutions vest every
Georgian with the absolute right to give — usually cannot be said to
have much more than barely nonzero probative value as to guilt of
a suspected crime.
But when a Georgian says “no” when asked to submit to a
warrantless blood draw and a prosecutor then seeks to offer that
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response as affirmative evidence of guilt, the risk of unfair prejudice
will often be much higher than barely nonzero.
And whether or not that alternative ground is ultimately
dispositive, the trial court has not yet addressed it.8 It should do so
on remand before reaching any constitutional issues. See Randall,
318 Ga. at 82 (2) (trial court should have resolved Rule 403
argument before reaching constitutional challenge to admissibility
of blood test refusal evidence).
I am authorized to state that Justice Bethel, and Justice
McMillian, and Justice Pinson join in this concurrence.
8 Dias does not appear to have specifically raised Rule 403 in her motion
to suppress or the motions in limine that she has filed so far. But there doesn’t
seem to be anything preventing her from raising it on remand. And her
constitutional claim is an as-applied claim, not a facial claim. Determining
whether a statute challenged as unconstitutional as-applied actually applies
to the challenger is often a condition precedent to reaching the constitutional
question. See, e.g., Dias v. Boone, No. S24A0887, 38-49 (3) (c) (Ga. Feb. 18,
2025). If the refusal evidence is excluded under Rule 403, then the challenged
statute is not being applied to Dias and the trial court has no reason to reach
her constitutional claims.
12