Can You Refuse a Breath Test After a DUI Arrest in Georgia?

A DUI arrest in Savannah can move quickly from a traffic stop to a request for chemical testing. After an arrest, an officer may ask you to submit to a breath test to determine your blood alcohol concentration.



At that point, many drivers have the same question: Can I refuse the breath test?

In Georgia, you can refuse to provide a breath sample, but the decision can have consequences for your driver's license. Georgia's implied consent law provides for a minimum one-year license suspension following refusal of a requested state-administered chemical test. At the same time, Georgia Supreme Court decisions have established important constitutional protections specifically concerning compelled breath testing and the use of a breath-test refusal as evidence in a criminal trial.

Understanding the difference between the criminal DUI case and the driver's license consequences is critical after a DUI arrest in Savannah or elsewhere in Georgia.

What Is Georgia's Implied Consent Law?

Georgia's implied consent law is based on the principle that the privilege of driving on Georgia roads is conditioned on submitting to certain state-administered chemical testing when the statutory requirements are met.

After a qualifying DUI arrest, an officer may request a chemical test of your breath, blood, urine, or other bodily substances. The officer generally selects which state-administered test is initially requested.

The purpose of testing is to determine whether alcohol or drugs are present and, when applicable, measure alcohol concentration.

Importantly, implied consent testing generally occurs after arrest. It should not be confused with a roadside preliminary breath test that an officer may request during the investigation before an arrest.

Can You Say No to a Breath Test in Georgia?

Yes. A person can refuse to provide a breath sample.

Georgia's constitutional law is particularly important here. In Olevik v. State, the Georgia Supreme Court determined that compelling a person to provide a breath sample implicates the Georgia Constitution's protection against compelled self-incrimination. Later, in Elliott v. State, the court held that a defendant's refusal to consent to a breath test cannot be admitted against the defendant at the criminal trial.

That does not, however, mean refusing a state-administered breath test has no consequences.

Georgia's implied consent statute separately provides for driver's license consequences when a person refuses requested chemical testing.

This distinction is one of the most important things to understand after a DUI arrest.

Can Refusing a Breath Test Cause Your License to Be Suspended?

Yes.

Under Georgia's implied consent statute, refusing a properly requested state-administered chemical test can result in suspension of your Georgia driver's license or privilege to drive for a minimum period of one year.

This administrative license issue is separate from whether you are ultimately convicted of DUI.

In other words, you could be dealing with two related but distinct matters:

• The criminal DUI prosecution
• The administrative driver's license consequences

That is why a driver should not assume that fighting the DUI charge alone automatically resolves the license issue.

Is a Breath Test Refusal Evidence Against You at a DUI Trial?

Georgia law draws an important distinction between refusing a breath test and refusing certain other chemical tests.

The Georgia Supreme Court held in Elliott v. State that the Georgia Constitution prohibits the prosecution from introducing evidence that a defendant refused to consent to a breath test at the criminal trial. The Georgia Bureau of Investigation likewise explains that Elliott and Olevik prohibit compelled breath samples and the admission of a suspect's breath-test refusal at trial.

That distinction matters because older information online may broadly state that every chemical-test refusal can simply be used against a defendant in court.

Georgia law has changed substantially in this area.

Is Refusing a Blood Test the Same as Refusing a Breath Test?

No.

This is an important distinction.

Georgia Supreme Court authority has treated breath and blood testing differently under the state constitutional protection against compelled self-incrimination. In Ammons v. State, the court reaffirmed protections involving refusal of breath testing while concluding that the same constitutional provision did not prohibit admission of evidence concerning refusal to consent to a blood test.

Georgia's current implied consent notice also states that refusal to submit to blood or urine testing may be offered into evidence at trial.

Because the legal consequences vary depending on the type of test requested, it is important to identify exactly what testing police requested in a particular DUI case.

What Does the Officer Have to Tell You About Implied Consent?

When requesting state-administered chemical testing under Georgia's implied consent law, the arresting officer is required to provide the appropriate implied consent notice.

For drivers age 21 or older, the statutory notice explains, among other things, that Georgia conditions driving privileges on submission to state-administered chemical testing and that refusal can result in a driver's license suspension of at least one year. It also advises the driver about the right to an additional independent chemical test after submitting to the state's requested testing.

Whether the correct notice was given and whether the interaction complied with Georgia law may become relevant when evaluating a DUI case.

Can You Request Your Own Independent Test?

Potentially, yes.

After submitting to the state-administered chemical testing, Georgia law provides a right to obtain additional chemical testing by qualified personnel of your own choosing and at your own expense. The statutory implied consent notice specifically advises drivers of this right.

An independent test can sometimes provide evidence that differs from the state's testing.

However, the right to additional testing is tied to first submitting to the requested state-administered test. Georgia case law has held that a defendant who refuses the state's test may lose the statutory right to an independent test.

Is the Roadside Breath Test the Same as the Breath Test After Arrest?

No.

Drivers often use the term "breathalyzer" to describe both, but there can be an important distinction between a preliminary roadside breath test and the state-administered evidentiary breath test requested after a DUI arrest.

A roadside breath test may be used during the officer's investigation to help determine whether there is probable cause for an arrest.

The state-administered chemical test generally occurs after arrest under Georgia's implied consent framework.

The Georgia Supreme Court has also recognized a constitutional right to refuse a preliminary breath test and held that evidence of such a refusal cannot be introduced at trial.

What Happens if You Refuse Field Sobriety Tests?

Field sobriety exercises are another separate issue.

They are not the same as the state-administered chemical test requested under implied consent.

In Ammons v. State, the Georgia Supreme Court held that a defendant had a constitutional right to refuse to perform field sobriety tests and that evidence of those refusals could not be introduced at trial.

However, officers may still rely on other observations and evidence gathered during the traffic stop when deciding whether to make a DUI arrest.

Can You Still Be Charged With DUI if You Refuse the Breath Test?

Yes.

Refusing a breath test does not prevent police from making a DUI arrest or prosecutors from pursuing a DUI charge.

A DUI case can potentially be built using other evidence, including:

• The officer's observations
• Driving behavior
• Dash-camera footage
• Body-camera footage
• Statements made by the driver
• Witness testimony
• Physical signs of impairment
• Other chemical testing when lawfully obtained
• Evidence found during the investigation

A missing breath-test result does not automatically mean the DUI case will be dismissed.

Can You Be Convicted of DUI Without a BAC Result?

Potentially.

Georgia law does not limit DUI prosecutions solely to cases where the state has a breath-test result showing a particular blood alcohol concentration.

Georgia recognizes different theories of DUI, including driving while a person is impaired to the extent that it is less safe for that person to drive. A prosecutor may therefore attempt to prove impairment through observations and other evidence even without an admissible breath-test result.

This makes the evidence from the entire traffic stop important.

What Evidence May Be Used in a DUI Refusal Case?

When there is no state breath-test result, other evidence can take on greater significance.

A defense attorney may review:

• The reason for the traffic stop
• Driving pattern
• Officer body-camera footage
• Dash-camera footage
• Statements allegedly made by the driver
• Physical observations recorded by officers
• Field sobriety evidence
• Witness testimony
• Whether other chemical testing occurred
• The timing and wording of the implied consent notice
• Police reports
• Video from the booking process

The officer's written characterization of someone's behavior should also be compared against any available video evidence.

Can Police Get a Warrant for Chemical Testing?

Chemical testing and search warrants present additional legal issues, particularly when blood is involved.

Georgia law and appellate decisions recognize circumstances in which law enforcement may seek a search warrant for a blood sample. The rules governing compelled blood testing differ from the constitutional protections surrounding compelled breath samples.

This is another reason a DUI case should be evaluated based on the exact test requested, whether the driver consented or refused, and whether police later obtained a warrant.

Does Refusing the Test Make the DUI Charge Go Away?

No.

Refusal does not automatically defeat the criminal charge.

Likewise, agreeing to a breath test and receiving a result over the legal limit does not automatically mean the prosecution's evidence cannot be challenged.

Depending on the case, potential issues may involve:

• Legality of the initial traffic stop
• Probable cause for arrest
• Accuracy and admissibility of chemical testing
• Whether implied consent requirements were followed
• Whether consent to testing was voluntary
• Officer observations
• Video evidence
• Field sobriety testing
• Medical explanations for alleged signs of impairment
• Statements obtained during the investigation

Every DUI case needs to be evaluated based on its own evidence.

What Happens to a Commercial Driver Who Refuses Testing?

Commercial drivers can face particularly serious consequences.

Georgia's implied consent notice provides that refusal can result not only in consequences to the person's general driving privilege but also disqualification from operating a commercial motor vehicle for a minimum period of one year.

For someone whose livelihood depends on a commercial driver's license, those administrative consequences can be significant even before the criminal DUI case is resolved.

What if You Already Refused a Breath Test?

If you already refused testing, avoid assuming either that your case is lost or that refusing automatically protected you from a DUI prosecution.

The next step is to determine exactly what happened.

Important questions can include:

• What test did the officer request?
• Was it a breath, blood, or urine test?
• Was the correct implied consent notice read?
• When was it read?
• What exactly did you say or do?
• Was the interaction recorded?
• Did police obtain any other chemical test?
• Was a search warrant obtained?
• What happened to your driver's license?
• What other evidence does the state have?

Those facts can affect both the criminal case and the administrative license matter.

Why You Should Act Quickly After a DUI Arrest

One of the biggest mistakes after a DUI arrest is focusing only on the upcoming criminal court date.

A DUI arrest can trigger a separate driver's license process, and administrative deadlines can be much shorter than the timeline of the criminal prosecution.

Evidence should also be preserved as early as possible. Body-camera footage, dash-camera footage, witness information, testing records, and other evidence may become important when evaluating the arrest.

Early legal review can help identify which issues need immediate attention.

Facing a DUI After Refusing a Breath Test in Savannah?

Refusing a breath test in Georgia can create a complicated situation because constitutional protections in the criminal case and administrative driver's license consequences are not the same thing.

A refusal may expose you to a license suspension even though Georgia constitutional law restricts the use of a breath-test refusal against you at the criminal trial. And even without a breath-test result, prosecutors may attempt to prove DUI using other evidence.

The Law Office of Kurtis C. Bronston, LLC represents individuals facing DUI charges in Savannah, Chatham County, and throughout Coastal Georgia. The firm handles misdemeanor and felony DUI cases as well as administrative driver's license matters.

Attorney Kurtis C. Bronston, a former prosecutor, can review the traffic stop, arrest, implied consent warning, requested testing, license consequences, and other evidence involved in your DUI case.

If you were arrested for DUI or refused chemical testing in Savannah or the surrounding area, contact the firm to discuss your case and the options available.