State v. Dias: Elliott’s Self-Incrimination Bar Is Limited to Breath Tests; Blood-Test Refusal Admissibility Remains Open Pending Proper Ruling

1. Introduction

Case: The State v. Dias (Supreme Court of Georgia, March 13, 2025).
Parties: The State of Georgia (appellant) and Christine Dias (appellee/defendant).
Charge Context: Dias is prosecuted in the State Court of Fulton County for DUI “less safe,” OCGA § 40-6-391 (a) (1), and related traffic offenses.

After being arrested on suspicion of DUI, Dias was read Georgia’s implied-consent notice and asked to submit to a blood test. She refused. Dias moved to suppress evidence of that refusal and sought a declaration that OCGA § 40-6-392 (d) (making refusal evidence admissible) is unconstitutional as applied to her.

The trial court agreed with Dias, found OCGA § 40-6-392 (d) unconstitutional as applied, and excluded the refusal evidence. The State appealed. The Court of Appeals transferred the matter because the trial court had “directly and distinctly” ruled on a constitutional question.

Key issue on appeal: Whether the trial court correctly excluded blood-test refusal evidence by relying on Georgia precedent (notably Elliott v. State) grounded in the state constitutional privilege against compelled self-incrimination, and whether the trial court actually resolved the separate, novel constitutional theory Dias advanced (search-and-seizure/due-process).

2. Summary of the Opinion

The Supreme Court of Georgia vacated the trial court’s exclusion order and remanded. The Court held that the trial court erred to the extent it treated Elliott v. State as barring admission of blood-test refusal evidence under Georgia’s self-incrimination clause (Art. I, Sec. I, Par. XVI). Elliott held only that Paragraph XVI precludes admitting refusal evidence for breath tests.

The Court further explained that the “novel constitutional question” (whether refusal evidence is inadmissible on other grounds, such as Fourth Amendment search-and-seizure or due process) was not “directly and distinctly ruled on” below, leaving it open. The Court expressed no view on that question.

3. Analysis

3.1. Precedents Cited

  • Nathans v. Diamond, 282 Ga. 804 (2007)
    Cited for the jurisdictional/record principle that the Court will not decide constitutionality unless the issue was properly raised and “distinctly passed on” by the trial judge. This frames why the Court treated the purportedly “novel” constitutional ruling as not actually having been decided.
  • Williams, 296 Ga. 817 (2015)
    The trial court invoked Williams for the proposition that a blood draw is a search and ordinarily requires a warrant absent consent or exigent circumstances, and that the State bears the burden to justify a warrantless search. In this appeal, the Supreme Court did not reject those Fourth Amendment basics—but emphasized that the trial court’s actual exclusion rationale leaned on the wrong line of precedent (self-incrimination cases).
  • Olevik, 302 Ga. 228 (2017)
    Olevik recognized a state constitutional self-incrimination principle (Paragraph XVI) protecting against compelled acts that generate incriminating evidence, famously applied to breath testing (deep lung air as an “act”). The trial court quoted Olevik to support a broader “right to refuse” warrantless blood tests, but Dias clarifies that Olevik is not itself a holding that refusal evidence for blood draws is inadmissible under Paragraph XVI.
  • Elliott v. State, 305 Ga. 179 (2019)
    The central corrective move in Dias: Elliott held that Paragraph XVI bars admitting a defendant’s refusal to submit to a breath test, and declared OCGA §§ 40-5-67.1 (b) and 40-6-392 (d) unconstitutional only “to the extent” they allow breath-test refusal evidence. Dias treats the trial court’s extension of Elliott to blood-test refusals as error.
  • Awad v. State, 313 Ga. 99 (2022)
    Used to articulate the controlling framework: Paragraph XVI suppression depends on whether the chemical test requires the defendant to “perform an act” to generate the sample. Awad held urine tests require affirmative conduct and thus can trigger Paragraph XVI protections under Olevik/Elliott. This helps explain why blood draws are different: the sample is typically taken by the State through a physical intrusion, not generated by the suspect’s affirmative act in the same way.
  • La Anyane v. State, __ Ga. __ (Case No. S24A1112, decided March 4, 2025)
    Cited for two key propositions: (1) Elliott renders OCGA § 40-6-392 (d) unconstitutional as applied to breath tests under Georgia’s self-incrimination clause, and (2) Georgia courts have “never held” that drawing blood implicates the Georgia self-incrimination right; additionally, the U.S. Supreme Court has rejected the idea that the federal self-incrimination right is implicated by a blood draw.
  • Strong [v. State, 231 Ga. 514 (202 SE2d 428) (1973)]
    Quoted for the traditional rule that a blood test does not make a defendant a “witness against himself” because the defendant is not compelled to generate the blood; it is removed by a minor intrusion. Notably, the opinion explains Strong was “overruled on other grounds by Williams,” and Olevik cautioned it was not undermining Strong’s self-incrimination holding—supporting the Supreme Court’s refusal to extend Elliott to blood draws.
  • State v. Randall, 315 Ga. 198 (2020) and State v. Randall, 318 Ga. 79 (2024)
    Cited twice for different but related points: (1) the “open question” status of certain constitutional theories regarding refusal evidence, and (2) in the concurrence, the principle that courts should address non-constitutional grounds (like evidentiary balancing) before deciding constitutional challenges.
  • Sons of Confederate Veterans v. Henry County Bd. of Commissioners, 315 Ga. 39 (2022) (citing Deal v. Coleman, 294 Ga. 170 (2013))
    Cited in the concurrence for the doctrine of constitutional avoidance: courts should not reach constitutional questions if another ground can decide the case.
  • Olds v. State, 299 Ga. 65 (2016)
    Central to the concurrence’s evidentiary analysis: relevance is “binary,” but probative value is a matter of degree. This supports an argument that refusal-to-consent evidence may be barely probative yet highly prejudicial.
  • Dias v. Boone, No. S24A0887 (Ga. Feb. 18, 2025)
    Cited in the concurrence for the as-applied doctrine: determining whether a challenged statute actually applies to the challenger can be a prerequisite to reaching the constitutional question.

3.2. Legal Reasoning

The Court’s analysis proceeds in two steps:

  1. Correcting the trial court’s doctrinal mismatch (self-incrimination): The trial court relied on Elliott v. State and Olevik—cases about compelled self-incriminating acts—to exclude evidence of refusal of a blood test. The Supreme Court held this was error because Elliott expressly limited its constitutional invalidation of OCGA § 40-6-392 (d) to breath-test refusals. The Court underscored that it had not held that blood draws implicate Paragraph XVI self-incrimination, and citations to Strong and La Anyane v. State reinforce that distinction.
  2. Declining to decide the separate, novel constitutional theory (search-and-seizure/due process): Dias also argued that refusal evidence penalizes the exercise of Fourth Amendment rights (refusing a warrantless search) and implicates due process. The Court held the trial court did not “directly and distinctly” rule on that novel question; therefore, it remained open and was not properly before the Court for decision in this posture. The proper remedy was vacatur and remand for the trial court to consider any other bases for exclusion raised below.

Concurring analysis (Peterson, P.J.): The concurrence adds a decisive procedural-analytic lens: even if constitutional arguments are presented, Georgia courts should first consider non-constitutional grounds that might resolve admissibility. It highlights OCGA § 24-4-403 (“Rule 403”) as a potentially case-dispositive alternative: refusal to consent to a warrantless blood draw may be marginally probative of “consciousness of guilt,” but may carry substantial risk that the jury will treat the refusal as inherently suspicious, despite many innocent reasons to refuse.

3.3. Impact

  • Doctrinal clarification: Trial courts may not treat Elliott v. State as a blanket prohibition on refusal evidence for all chemical tests. Dias reinforces a test-specific approach: breath (and potentially urine under Awad v. State) rests on compelled “acts,” while blood draws historically do not.
  • Procedural discipline in constitutional adjudication: The decision emphasizes that appellate resolution of constitutional questions depends on whether the trial court actually decided the precise constitutional theory presented. Labeling an issue “novel” while relying on inapplicable precedent is insufficient.
  • Re-centering Rule 403 for refusal evidence: The concurrence invites litigants and trial courts to treat Rule 403 as a primary battleground for blood-test refusal evidence—potentially excluding it without reaching constitutional questions, consistent with State v. Randall.
  • Open constitutional question preserved: Whether admitting blood-test refusal evidence penalizes the exercise of Fourth Amendment rights (or violates state search-and-seizure protections) remains unresolved, signaling likely future litigation and the need for fact-specific trial court rulings.

4. Complex Concepts Simplified

Implied consent
Georgia law requires officers to read a statutory notice advising drivers that chemical testing is requested and that refusal can have legal consequences. The controversy here is whether using refusal as evidence is constitutional in particular contexts.
Paragraph XVI (Georgia Constitution) vs. Fifth Amendment
Paragraph XVI is Georgia’s self-incrimination clause. Georgia has interpreted it in some circumstances more broadly than the federal Fifth Amendment—especially where the State compels a person to perform an incriminating act (e.g., generating deep lung air for a breath test).
Blood draw as a “search”
Taking blood is a physical intrusion and thus a search. The Fourth Amendment generally requires a warrant unless an exception applies (e.g., consent or exigent circumstances). But the separate question in Dias is whether refusal evidence can be admitted when a person declines a warrantless blood draw.
“As-applied” vs. “facial” constitutional challenge
An as-applied challenge argues a statute is unconstitutional in the challenger’s specific circumstances, not in all applications. The concurrence notes that if evidence is excluded on non-constitutional grounds, the statute may not be “applied” to the defendant at all, potentially mooting the constitutional ruling.
Rule 403 balancing
Even relevant evidence can be excluded if its probative value is substantially outweighed by unfair prejudice. The concurrence suggests refusal-to-consent evidence often has low probative value (many innocent explanations) but high prejudice risk (jurors may treat refusal as guilt).
Constitutional avoidance
Courts should not decide constitutional questions if a case can be resolved on another ground (like evidentiary rules). This is a recurring theme in the concurrence, supported by State v. Randall and related cases.

5. Conclusion

The State v. Dias sets a clear boundary on Georgia’s refusal-evidence jurisprudence: Elliott v. State’s Paragraph XVI prohibition on admitting refusal evidence applies to breath-test refusals, not automatically to blood-test refusals. Because the trial court did not distinctly decide the separate, novel constitutional theory grounded in search-and-seizure or due process, the Supreme Court vacated the exclusion order and remanded.

The opinion, reinforced by the concurrence, also signals a practical roadmap for future litigation: trial courts should address Rule 403 and other non-constitutional admissibility grounds first, and only reach constitutional questions if necessary—and then only after distinctly ruling on the precise constitutional claim presented.