Can You Refuse a Breath Test in Georgia?

Yes, you can refuse a breath test in Georgia – but the consequences depend heavily on which breath test the officer is requesting.

Georgia DUI investigations may involve a roadside handheld breath test or an official state-administered breath test after an arrest. These are not the same, and refusing them can have very different effects.

Refusing a Roadside Breath Test

During a traffic stop, an officer may ask you to blow into a portable handheld device. This is commonly called a preliminary breath test.

The roadside breath test is generally used to help an officer decide whether there is probable cause to make a DUI arrest. You have the right to refuse this test. The Georgia Supreme Court has also ruled that evidence of a person’s refusal to perform a preliminary breath test cannot be introduced against them at trial.

Refusing the roadside test does not guarantee that you will avoid arrest. An officer may still rely on other evidence, including:

• The way you were driving
• The smell of alcohol
• Slurred speech or bloodshot eyes
• Statements made during the traffic stop
• Field sobriety testing
• Body-camera or dash-camera footage

Georgia law allows someone to be charged with DUI when alcohol or drugs allegedly made them a “less safe” driver, even without a breath-test result.

Refusing the Official Breath Test After Arrest

After a DUI arrest, an officer may read Georgia’s implied-consent notice and request an official chemical test of your breath.

Georgia’s implied-consent law states that drivers are considered to have consented to state-administered chemical testing under certain circumstances. You may still physically refuse the official breath test, but doing so can trigger an administrative suspension of your driver’s license or Georgia driving privileges for at least one year.

This license suspension is separate from the criminal DUI case. It may begin even before you have been convicted of DUI.

There is generally a limited period – often 30 days from receiving the suspension notice – to request an administrative hearing and challenge the suspension. Missing the deadline can waive your right to that hearing.

Can Your Refusal Be Used Against You in Court?

Under the Georgia Supreme Court’s decision in Elliott v. State, a refusal to submit to a breath test cannot be used as evidence against the defendant in a criminal trial. However, that ruling does not eliminate the possible driver’s-license consequences of refusing the official test.

The rules may be different for blood or urine testing, so each situation must be evaluated individually. Law enforcement may also attempt to obtain a warrant for additional testing after a refusal.

Does Refusing Prevent a DUI Charge?

No. A person can still be arrested, charged and potentially convicted of DUI without a breath-test result. Prosecutors may attempt to prove the case using the officer’s observations, driving behavior, video footage, statements and other available evidence.

Because a refusal can affect both your license and your criminal case, it is important to speak with a Georgia DUI attorney as soon as possible. An attorney can review whether the traffic stop and arrest were lawful, whether the implied-consent warning was properly given and what options may be available to protect your driving privileges.

Facing a DUI charge in Georgia? Contact the Law Office of Danielle Sewell to discuss your case and understand your options.

This article provides general information and is not a substitute for legal advice regarding a specific case.