Refusing the Breath Test in Georgia: The Truth About Implied Consent in Gwinnett County

Most people don’t fully understand their rights when they are pulled over in Georgia, especially when it comes to breath tests and implied consent. In the moment, drivers are often confused, stressed, and unsure about what they are legally required to do versus what they can refuse. This confusion is even more common with Georgia’s implied consent law. Here is what to know about implied consent in Georgia if you are pulled over and told to submit to a breath test. 

What Is a Breath Test?

A breath test is a method used to measure the amount of alcohol in a person’s system by analyzing their breath. It is commonly used by law enforcement during traffic stops to determine whether someone may be driving under the influence. If an officer has reason to believe a driver has been using alcohol or drugs, the officer can request a test. The person blows into a mouthpiece, and the machine analyzes the breath sample to estimate blood alcohol concentration based on the alcohol molecules present in the deep-lung air. Results are usually reported as blood alcohol concentration (BAC). In Georgia, the Intoxilyzer 5000 is the only approved breath testing device used for evidential purposes.

What Is Implied Consent?

Georgia Code § 40-5-55 establishes Georgia’s “implied consent” law for drivers. In simple terms, it means that by driving on Georgia roads, a person automatically agrees to chemical testing (such as blood, breath, or urine tests) if they are arrested for DUI or involved in a serious crash. This agreement is not something the driver signs at the time. Instead, it is based on the idea that by getting a driver’s license and driving, the person has already given this type of consent.

The purpose of implied consent laws is to make it easier for officers to collect evidence in DUI cases. Because alcohol and drugs can leave the body over time, tests such as breath tests are important for showing impairment close to the time of driving. The cases Elliott v. State and Olevik v. State held that the Georgia Constitution does not allow a suspect to be forced to provide a breath sample. The courts in those cases also ruled that evidence showing a person refused a breath test cannot be used at their criminal trial. This created uncertainty about how these decisions would affect Georgia’s implied consent laws and the use of breath test results.

A Georgia DUI law prevents police from telling drivers that refusing a breathalyzer test can be used against them in court. House Bill 471 updated the informed consent warning given after a traffic stop and DUI investigation. Governor Brian Kemp signed the bill on April 28, 2019. Officers can still obtain blood or urine tests with a warrant, and drivers may still choose to take a breath test voluntarily. Under the new Implied Consent Notice, a refusal to take a breath test cannot be used as evidence in a criminal trial.

So, Can I Just Refuse?

You can refuse, but understand that doing so can negatively impact you. The law changed regarding what police officers must tell individuals from whom they request a breathalyzer. However, the law did not change that a person can face legal woes if they refuse the breathalyzer. 

Under Georgia Code § 40-5-67.1, refusing to submit to a requested chemical test after a lawful DUI arrest carries serious consequences. If a driver refuses testing of their blood, breath, or urine, the Department of Driver Services (DDS) will impose an automatic administrative suspension of their driver’s license. For most drivers 21 or older, the suspension is typically for at least one year for a first refusal. The suspension applies even if the person is not ultimately convicted, since it is based solely on refusal to submit to testing under Georgia’s implied consent law. 

If you have refused before, things are even worse. A second refusal to submit to a breathalyzer in Georgia within five years carries a much harsher penalty than the first. In that situation, the driver faces a 3-year license suspension, meaning they cannot legally drive for an extended period before becoming eligible to apply for reinstatement. These refusals are tracked independently of any DUI charges, so they still count even if a prior DUI case was reduced or dismissed in court. Because of this separate tracking system, an earlier refusal can continue to impact future penalties, making repeat refusals significantly more serious.

What If I Consented and Was Over the Limit?

Sometimes, when people consent and blow over the limit, they think that’s all there is to it. It is possible to contest the breath test results. Officers must properly read Georgia’s implied consent warning, and if they fail to do so, the test results may be suppressed. Some medical conditions, or even using mouthwash, can possibly lead to a false result. There could also be questions about whether the device was properly calibrated or maintained according to the required inspection schedules. Alternatively, if you were stopped without probable cause, any resulting test evidence could be ruled inadmissible.

Contact an Experienced Georgia Criminal Defense Attorney 

If you have questions about Georgia’s implied consent law or are facing charges related to a breath test refusal or DUI arrest, it is important to contact an experienced Georgia criminal defense attorney. These cases often involve complex legal issues, including whether proper warnings were given and whether your rights were fully explained during the traffic stop. An attorney can review the details of your arrest, challenge the validity of the breath test or refusal, and identify possible defenses. Being represented early in your case can affect whether or not you are still driving, as well as affect aspects of your life beyond your license status.