What Happens When a Driver Refuses a Breath Test in Georgia?
After a Georgia DUI arrest, an officer may ask the driver to take a state-administered breath test. That request can come after a roadside investigation that already included a handheld breath device, making the two tests easy to confuse. Refusing the state-administered test leaves the case without that breath-alcohol result, but it does not end the DUI prosecution or the license consequences tied to the refusal.
The criminal case and the Georgia Department of Driver Services matter can begin moving in different directions almost immediately. Prosecutors may continue with other evidence from the stop, while DDS can begin a separate suspension process. Georgia also limits how the refusal itself may be used if the DUI case reaches trial.
For someone facing a DUI charge after refusing the state-administered test, working with an experienced Georgia DUI breath testing lawyer before the 30-day DDS deadline can preserve the right to contest the suspension.
The DUI Case Can Move Forward Without a Breath Test
Refusing the state-administered test removes one potential source of chemical evidence from the prosecution. Georgia can still pursue a less-safe DUI charge under O.C.G.A. § 40-6-391(a)(1), which prohibits driving while under the influence of alcohol to the extent that the person is less safe to drive.
Without a breath result, prosecutors may rely more heavily on what happened on the road and during the traffic stop. The officer’s description of the driving, statements made during the encounter, roadside observations, and field sobriety evidence can all become part of the case.
Body-camera footage can give those observations much more context than a police report alone. Video may show how the driver actually spoke and moved or how field sobriety exercises were explained and performed. With no state-administered breath test to present, the details preserved on camera may carry greater weight for both sides.
License Trouble Can Begin Before the Court Case Develops
A qualifying refusal can lead to a one-year administrative suspension of the driver’s Georgia license or driving privilege under Georgia’s implied consent law. DDS does not have to wait for a criminal DUI conviction before that process begins.
When the officer takes the driver’s license, O.C.G.A. § 40-5-67 provides for a 45-day temporary driving permit after a refusal. That temporary authority may already be running while the DUI charge is still at the beginning of the court process.
A driver may be waiting for an early court date, requesting body-camera footage, or learning what evidence prosecutors intend to use while the temporary permit is counting down. Focusing only on the criminal charge can leave the separate license problem unattended.
Thirty Days Can Make a Major Difference
Georgia gives a driver a limited time to contest the administrative suspension. Under O.C.G.A. § 40-5-67.1, a written hearing request and the required filing fee generally must be submitted within 30 days after notice. Missing the deadline can waive the right to that hearing.
Some eligible drivers may pursue an ignition interlock device limited driving permit under O.C.G.A. § 40-5-64.1. The permit must be sought within the statutory period, and choosing that option requires the driver to waive the administrative hearing.
Those choices can arise while very little has happened in the DUI prosecution. One driver may decide to contest the suspension at a hearing, while another who qualifies may choose the ignition-interlock permit to retain limited driving privileges. The available route depends on the driver’s circumstances and eligibility.
The Refusal Itself Does Not Become Proof of Guilt
A breath refusal does not give prosecutors evidence they can simply present to a jury as proof that the driver was under the influence. Georgia’s Supreme Court drew that line in Elliott v. State, holding that the Georgia Constitution prohibits the State from introducing a defendant’s refusal to take a state-administered breath test as evidence against the defendant at trial.
The DUI case can still include other admissible evidence gathered during the investigation. Prosecutors may rely on testimony about the driving, roadside observations, statements, field sobriety exercises, or other evidence that remains available after defense challenges.
What changes is the prosecution’s ability to use the refusal itself. A jury cannot be invited to assume that refusing to provide a breath sample shows the driver was impaired, even though the same refusal may have already created consequences for the driver’s license.
Police May Look for Chemical Evidence Another Way
Refusing a breath test does not always leave the case without chemical evidence. Georgia law preserves evidence obtained through voluntary consent or a lawful search warrant, and police may seek judicial authorization for a blood draw after a breath refusal.
If a warrant is issued and blood is collected, prosecutors may later have a laboratory alcohol or drug result even though the state-administered breath test was never completed. The case may ultimately involve chemical evidence very different from what the officer first requested.
A blood result obtained after the refusal can become an important part of the prosecution’s case. Guidance from a knowledgeable Georgia DUI breath testing lawyer can help challenge the evidence prosecutors use when no state-administered breath result is available.
Contact The Spizman Firm Today
If you refused a state-administered breath test after a DUI arrest in Georgia, you may be dealing with a license suspension while the criminal case is still in its early stages. The evidence that remains after the refusal can also shape how the DUI charge is defended.
The Spizman Firm provides experienced DUI defense for clients throughout the Atlanta metropolitan area and the State of Georgia. Contact The Spizman Firm to speak with an experienced Georgia DUI breath testing lawyer and learn how we can build a defense after a DUI arrest involving a refused breath test.
Sources:
- C.G.A. § 40-6-391 — Driving Under the Influence of Alcohol, Drugs, or Other Intoxicating Substances
law.justia.com/codes/georgia/title-40/chapter-6/article-15/section-40-6-391/ - C.G.A. § 40-5-67.1 — Chemical Tests; Implied Consent Notices; Refusal to Submit; Administrative License Suspension
law.justia.com/codes/georgia/title-40/chapter-5/article-3/section-40-5-67-1/ - C.G.A. § 40-5-67 — Seizure and Disposition of Driver’s License; Temporary Driving Permit
law.justia.com/codes/georgia/title-40/chapter-5/article-3/section-40-5-67/ - C.G.A. § 40-5-64.1 — Ignition Interlock Device Limited Driving Permits
law.justia.com/codes/georgia/title-40/chapter-5/article-3/section-40-5-64-1/ - Elliott v. State, 305 Ga. 179, 824 S.E.2d 265 (2019)
law.justia.com/cases/georgia/supreme-court/2019/s18a1204.html