Can I Refuse a Breathalyzer Test in Georgia?

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Author: Philip Kim, Founder, Philip Kim Law, P.C.

Defense lawyer Philip Kim has committed his career to standing up for the accused, and protecting the rights and reputations of his valued clients. If you face criminal charges in Georgia, we can provide you with the skilled, effective defense representation you need.

Published on February 01, 2023.


Are You Obligated to Take a Breathalyzer Test?

If a police officer pulled you over on suspicion of DUI in Georgia, you might be asked to submit to a breath test. But can you refuse it?

In Georgia, all drivers are subject to the state’s implied consent law. Georgia sees driving as a privilege, more than a right. So, by operating a motor vehicle on public roads, you have agreed to submit to chemical tests—usually a blood or urine test or breathalyzer test—if requested by law enforcement.

Several years ago, Georgia Supreme Court ruled that refusal to submit to a breath test can’t be used against a driver in court because it violates protections against self-incrimination. But that doesn’t mean the police will let you go. You will probably face a DUI arrest and then be asked to submit to a breathalyzer test at the police station. 

In addition, if you refuse a Breathalyzer test, the Georgia Department of Driver Services (DDS) can automatically suspend your driver’s license.

It is important to understand the DUI Process, your rights, and the consequences of refusing a breathalyzer test 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.

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.

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Philip Kim Law, P.C.
368 West Pike Street, Suite 203
Lawrenceville, GA 30046
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Fax: (678) 273-3501
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