Can You Refuse a Breathalyzer in Georgia?

What Is Georgia Implied Consent Law?

Georgia’s implied consent laws are based on the idea that, by agreeing to drive on Georgia roads, you have agreed in advance to submit to state-administered chemical tests of your breath, urine, blood, or other bodily substances to determine whether you are driving impaired by drugs or alcohol.

That being said, you are required to submit to a DUI chemical test if you are lawfully arrested for DUI or involved in a motor vehicle accident resulting in severe injuries or fatalities. The arresting officer has the right to choose what type of chemical test will be performed. Officers typically choose between a breath, urine, or blood test.

Although you are not required by law to submit to a portable breath test before a DUI arrest, you have to submit to them after your arrest. In fact, a breath test is unnecessary for the police to arrest you on suspicion of driving under the influence. Other factors, including the smell of alcohol, reckless driving prior to pulling the driver over, slurred speech, or the driver’s behavior, can be a reason for a DUI arrest.

In other words, if the police suspect you are under the influence of alcohol while driving, refusing a breathalyzer test will probably just delay the inevitable.

If you appear intoxicated, the police won’t allow you to drive away simply because you refused a test. Additionally, once arrested for DUI, drivers are legally required to submit to a breath test at the police station or a blood test, or a urine test that only certain medical professionals can perform. Refusing can result in police obtaining a warrant, and you will have no choice but to comply.

What Is an Implied Consent Notice?

The important fact of a DUI case is that the arresting officer has to recite or read an implied consent notice if they are arresting the driver for DUI drugs or alcohol. The Georgia Implied Consent Advisement informs the driver that they are required to submit to testing, the right to ask for independent test drivers, and the potential penalties for refusal to submit. The officer has to ask you whether you agree to be submitted to the test they have chosen.

A Georgia implied consent notice must be given to the driver prior to the test. Without it, the test results cannot be admitted by the court. In addition, it will prevent the Georgia Department of Driver Services (DDS) from administratively suspending the driver’s license based on the driver’s refusal to take the test.

Consequences of Refusing a Breathalyzer Test

If you choose to refuse a breathalyzer test, your driver’s license will be immediately suspended for one year by the Georgia DDS, regardless of whether or not you are convicted of DUI charges. No limited driving permit will be available.

As soon as you refuse the breathalyzer test, the officer can confiscate your driver’s license and give you a piece of paper. The form will explain how to appeal the administrative license suspension as well as serve as a temporary driving permit. Temporary driving permits are valid only for 45 days after DUI arrests.

You have 30 days to request an administrative license suspension hearing, challenge your driver’s license suspension, or choose an Ignition Interlock Device option. The hearing takes place before an administrative law judge who will be interested to hear whether the driver refused the test or the test indicated the driver’s blood alcohol concentration (BAC) was over the legal limit. Once you submit a request, your license suspension will be put on hold until the hearing occurs.

Drivers also have the option to request an installation of an ignition interlock device. That request also has to be submitted within 30 days. However, the device has to be installed for a whole year if you refuse to take the test, regardless of the outcome of a DUI case.

If you don’t do anything, your Georgia driver’s license will be suspended on the 46th day after your DUI arrest for an entire year.

Administrative Hearings & License Suspension Process

When a driver refuses a chemical test in Georgia, the arresting law enforcement officer immediately initiates an administrative license suspension process. This begins with confiscation of your physical license and the issuance of a 45-day temporary driving permit. The officer will also submit paperwork to the Georgia Department of Driver Services (DDS), triggering the administrative side of your case—separate from the criminal DUI charges.

Drivers then have 30 days to either:

1. Request an administrative hearing with the Office of State Administrative Hearings (OSAH).
2. Install an ignition interlock device (IID) and apply for a special limited permit (in some first-offense cases).

At the hearing, an administrative law judge reviews the case. The judge will decide whether:

• The officer had reasonable suspicion for the stop and probable cause for the arrest.
• The implied consent notice was properly read.
• The driver refused the test.

If the judge rules against you, the license suspension will stand for one year. If errors are found, your license may be reinstated. These hearings are highly technical, and most drivers choose to work with an attorney who can identify flaws in police procedure and protect their driving privileges.

Penalties & Consequences for Repeat Refusals

While a first refusal already triggers a serious one-year license suspension with no limited driving permit, repeat refusals within five years escalate the consequences significantly. Georgia law treats habitual refusals as evidence of deliberate non-compliance with implied consent laws, making it more difficult to negotiate with prosecutors or judges.

Here’s what drivers may face:

• Second Refusal (within five years): A second refusal results in another administrative license suspension lasting one year, but it also increases the likelihood of harsher penalties in criminal court for related DUI charges. No limited driving permit will be issued.
• Third Refusal: A third refusal within five years can trigger a long-term revocation of your driving privileges and designation as a habitual violator under Georgia law. This often means a five-year suspension, costly reinstatement fees, and mandatory DUI risk reduction programs.
• Court-Ordered Consequences: Judges may impose higher fines, longer probation terms, or stricter alcohol monitoring conditions if they believe the driver is trying to avoid accountability.

In short, refusing multiple times compounds your problems. It not only extends license suspension periods but also creates a track record that prosecutors may use to argue for stiffer punishment in future DUI cases.

Legal Process & Exceptions

Refusing a breathalyzer does not stop the legal process from moving forward. After a refusal, police often seek a warrant to obtain a blood sample, particularly if an accident involves injuries or fatalities. Once a judge grants the warrant, the driver is legally obligated to comply, and the results of that chemical test may still be used as evidence in your DUI case.

There are, however, some exceptions and defenses related to refusals:

• Medical Inability: Some drivers genuinely cannot provide a sufficient breath sample due to conditions like asthma, COPD, or anxiety disorders. With medical documentation, a refusal might not trigger automatic license suspension.
• Improper Advisement: The law enforcement officer must correctly read the implied consent notice. If the advisement was rushed, unclear, or omitted, attorneys can argue that the refusal is invalid.
• Unlawful Arrest: If the officer lacked probable cause for the DUI stop, the refusal—and any resulting administrative license suspension—can be contested.
• Technical Exceptions: In rare cases, faulty testing equipment or miscommunication between officers may open the door for challenges.

Understanding these exceptions is critical. While Georgia’s implied consent law is strict, courts also recognize that procedures must be followed carefully. An experienced DUI defense lawyer can analyze the facts of your case to determine if refusal penalties can be reduced or overturned.

Defense Strategies for Refusing a Breathalyzer Test

Refusing a breathalyzer test in Georgia doesn’t automatically mean a conviction. Several defense strategies can be employed to challenge the consequences of your refusal. Each case is unique, and the success of these strategies depends on the specific circumstances surrounding the arrest and refusal.

• Lack of Probable Cause: One of the most common defenses is to challenge the initial stop or arrest. If law enforcement didn’t have a valid reason to stop you or lacked probable cause to believe you were under the influence, any subsequent evidence, including the refusal, could be suppressed.

• Improper Police Procedures: The manner in which the police handled your arrest is critical. For instance, if the officer failed to properly inform you of the consequences of refusing the test, this could be grounds to contest the refusal. Officers are required by law to explain your rights and the repercussions of refusing the test. If they didn’t follow the correct procedures, the refusal might be invalidated.

• Medical Conditions: Certain medical conditions can affect a person’s ability to perform field sobriety tests or blow into a breathalyzer. Conditions such as asthma or other respiratory issues might make it physically impossible to provide an adequate sample. This defense can be powerful if documented by a medical professional.

• Inaccurate or Misleading Officer Statements: Sometimes, law enforcement may imply that refusing the breathalyzer is the safest option without fully explaining the legal consequences. If the officer’s statements misled you into refusing, this could form the basis of a defense.

• Challenge to Implied Consent: Georgia operates under an implied consent law, meaning that by driving, you consent to chemical testing. However, if the consent was not given knowingly or was coerced, this could be challenged in court.

• Previous Cases: There have been instances where similar refusals were successfully defended. For example, a case where the officer’s dashcam footage contradicted their testimony or where the officer’s credibility was successfully questioned in court led to a favorable outcome for the defendant.

Using these strategies, along with the expertise of an experienced DUI attorney, you may reduce the penalties or even avoid conviction entirely.

Are Breathalyzers Admissible in Georgia Courts?

Results of roadside tests taken by a portable breath test device can’t be used in a DUI court process. However, if you are arrested and required to submit to chemical testing in the manner required by law and using designated machines and methods, these results can be used in court.

Even if you blow into a portable version of a breathalyzer and refuse to submit to a test after arrest, you will have a refusal on your record.

Bear in mind that drivers who agree to submit to the test a police officer chooses can request an independent test that doesn’t have to match the officer’s test. The officer has to make accommodations for the independent test to be performed. If they don’t, the driver’s DUI

Still Have Questions on Breathalyzer Test Refusal? Contact Our Law Firm! 

Taking or refusing a breathalyzer test can have serious implications, so it is crucial that drivers know their options before deciding which route to take. It’s important to know that Georgia law does not allow drivers to consult with an attorney before deciding whether to take a breathalyzer test.

Many drivers think that by refusing to take a breathalyzer test, the police won’t have enough evidence to convict them. But that is rarely the case. While you are not breaking the law if you refuse a breathalyzer test before an arrest, other penalties may be associated with your refusal, such as a driver’s license suspension.

Even though refused tests don’t lead to a DUI conviction, they can still be used as evidence against you. Therefore, it is vital to understand all potential ramifications before deciding to take or refuse a breathalyzer test in Georgia.

If you have more questions about a Breathalyzer test refusal, consider contacting a DUI lawyer at Philip Kim Law, P.C.