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Can I Refuse a Breathalyzer in Georgia? What Implied Consent Actually Means

Leon Hicks, Esq.

Georgia Bar Member - 36 Years of DUI Defense Experience - Jonesboro, GA

Last Updated: May 2026

If you’ve just been pulled over — or someone you love has — one of the first questions that comes to mind is this:

Do I have to blow into that thing?

It’s a reasonable question. And the answer is more complicated than most people think.

Yes, you can refuse the breathalyzer in Georgia. But before you decide that refusal is your best move, there are two things you need to understand. First, what it actually costs you. Second, what it does — and doesn’t — protect you from.

I’ve watched drivers make this decision in the moment, without the right information, for over thirty-six years. The ones who understood the law made a choice. The ones who didn’t lost something they couldn’t get back.

Let me give you the full picture.

First: There Are Two Different Tests

This is the part most people miss entirely, and it matters.

When you get pulled over on suspicion of DUI in Georgia, you may be asked to take two separate breath tests — and your rights are different for each one.

Test 1 — The Preliminary Breath Test (PBT). This is the small handheld device the officer holds out at the side of the road, before you’re arrested. This test is voluntary. You can refuse it without any legal penalty. The results of the PBT are not accurate enough to be submitted in court — that’s not an opinion, it’s the legal standard in Georgia. Most experienced DUI attorneys advise declining this test.

Test 2 — The State-Administered Chemical Test. This is the official test, administered after you’ve been arrested, typically at the station or jail. This test is governed by Georgia’s Implied Consent law. This is the one that carries legal consequences if you refuse.

When people ask “can I refuse the breathalyzer?” they usually mean the roadside test. The answer is yes, with no automatic penalty. But if they’re asking about the state-administered test after arrest — the answer is different, and the consequences are real.

What You Don’t Know About the Traffic Stop

Here’s something most drivers never find out until it’s too late.

In thirty-six years of DUI defense in Clayton County, I’ve seen officers extend a traffic stop — asking questions, making conversation, waiting — for more than an hour before requesting the test.

Why? Because alcohol metabolizes over time. If you had a drink an hour before getting pulled over, your blood alcohol level may continue to rise for a period after you stop drinking. An officer who keeps you talking at the side of the road long enough may be waiting for that number to climb before asking you to blow.

You’re standing there thinking the conversation is routine. What’s actually happening is that time is working against you.

This is one of the reasons why what you say — and don’t say — during a traffic stop matters. You are not required to answer questions beyond providing your license, registration, and proof of insurance. Everything else is voluntary.

What Implied Consent Means — O.C.G.A. § 40-5-55

Under Georgia law, the moment you got behind the wheel of a vehicle in this state, you already agreed to chemical testing.

That’s what implied consent means. It’s not something the officer asks you to sign. It’s baked into your driver’s license. Under O.C.G.A. § 40-5-55, every driver in Georgia has implicitly consented to submit to a chemical test — breath, blood, or urine — if lawfully arrested for DUI.

Before administering the state test, the officer is required to read you the Georgia Implied Consent Notice. It sounds something like this:

“Georgia law requires you to submit to state-administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs...”

After that notice is read, you have a choice. Submit to the test or refuse. That choice has consequences either way.

What Actually Happens When the Notice Is Read

Here’s what I’ve observed over and over in practice.

Drivers get nervous. The lights are flashing. The officer is standing at the window. They’ve been pulled over, possibly detained, possibly already in handcuffs. And someone is reading them a legal notice — fast, in official language — that they are expected to respond to immediately.

What happens? They stop listening. They get so anxious that the words stop registering. It’s not unusual for a driver to genuinely not remember being read the Implied Consent Notice at all.

Here’s what changed that picture: video.

When Georgia law enforcement began recording the implied consent process on dashcam and bodycam, it became possible to show exactly what happened — even when the driver had no memory of it. In case after case, the video shows the notice being read clearly, the driver present and conscious, even when that same driver later insists they never heard it.

That video footage is now routinely used as evidence. If you believe the notice wasn’t read correctly — or at all — that’s a legal argument worth having. But it requires an attorney who knows how to obtain and challenge that footage, and how to argue the notice’s adequacy in an ALS hearing. It’s not a DIY conversation.

What Happens If You Refuse — O.C.G.A. § 40-5-67.1

Under O.C.G.A. § 40-5-67.1, refusing the state-administered chemical test triggers an automatic one-year license suspension.

Unlike a suspension from a failed test — where you may be eligible for a limited permit to drive to work, school, and medical appointments — a refusal suspension carries no limited permit option under the standard process.

One year. No driving. No exceptions through the normal channels.

Additionally, the refusal gets reported to the Georgia Department of Driver Services, and the suspension begins on day 46 after your arrest — unless you’ve filed for an ALS hearing within the 30-day window. (That 30-day deadline is covered in detail in our first article in this series.)

Once you refuse, your options diminish. That’s not a scare tactic — it’s the structure of the law. The more I can work with, the more I can protect you. If you don’t refuse, you have a lot more options legally. I can defend you better when the evidence picture is clearer than when it’s been cut off by a refusal that’s already locked in.

What the 2019 Elliott Decision Changed

Here’s where Georgia law differs from what most people assume — specifically on a first DUI offense.

In 2019, the Georgia Supreme Court decided Elliott v. State. The court held that under the Georgia Constitution’s protection against self-incrimination, a driver’s refusal to take a breath test cannot be used as evidence of guilt at a criminal trial.

That’s a significant protection — for a first offense. In many states, the prosecutor can stand up in court and say: “Ladies and gentlemen, the defendant refused the breath test. Ask yourself why.” On a first DUI in Georgia, they cannot do that with a breath test refusal.

However — and this is critical — the Elliott decision only applies to breath tests on a first offense. On a second or subsequent DUI, other statutes may come into play that allow prosecutors to use a refusal against you at trial. If you have a prior DUI on your record, do not assume Elliott protects you. It may not.

Additionally, the Elliott decision does not protect refusals of blood tests or urine tests on any offense. Those refusals can still be introduced as evidence at trial in Georgia.

And the administrative license suspension still applies regardless. The criminal case and the license case are two separate tracks. Elliott affects one aspect of the criminal case on a first offense. It does not affect the administrative track.

One More Thing Worth Knowing About the Law

Here is a distinction that matters — and that most people get wrong.

It is legal in Georgia to drink and then drive.

It is illegal in Georgia to drink and drive.

Those two sentences are not the same thing. Under O.C.G.A. § 40-6-391, the offense is driving while less safe to operate a vehicle — not the act of having consumed alcohol before getting behind the wheel. The law does not criminalize the fact that you drank. It criminalizes driving while impaired as a result.

This distinction matters because it shapes the entire defense. The state has to prove not just that you drank, but that the alcohol made you a less safe driver. That’s a higher bar than most people realize — and it’s one of the reasons that having an attorney who understands what the state actually has to prove makes all the difference.

The Math: Refusing vs. Submitting

Neither option is automatically better. It depends on the specific facts of your case. But here’s the honest breakdown:

If you submit and pass (BAC under 0.08): The officer can still charge you under Less Safe — but the chemical evidence doesn’t support the Per Se charge. This is one of the stronger defensive positions available.

If you submit and fail (BAC 0.08 or above): The state has chemical evidence. You face a 120-day license suspension, but you’re eligible for a limited driving permit. Your attorney can still challenge the testing procedure, the machine’s calibration, and whether the stop itself was lawful.

If you refuse: The state has no chemical evidence for the Per Se charge — but they may still charge you under Less Safe based on the officer’s observations. You face a one-year license suspension with no limited permit. Your options narrow from the moment the refusal is recorded.

The question isn’t “does refusing protect me?” The question is: What does the state have to work with, and what does my attorney have to work with?

That calculation is different in every case. It’s why the call to an attorney should happen in the first few days — not after the damage is done.

What You Should Do Right Now

Don’t assume the refusal protects you. It changes the evidence picture. It doesn’t make the charge disappear.
Find your DDS-1205 form immediately. Whether you submitted or refused, the 30-day administrative clock is running. That deadline governs your license — not your court date.
Call a DUI attorney before day 25. Not after the suspension kicks in. Not after the court date. Before day 25, so there is time to properly file for the ALS hearing if that’s the right move.
Don’t discuss the case. Not on social media. Not with coworkers. Not with anyone who might end up as a witness.

If You Were Arrested for DUI in Clayton County

Whether you submitted to the test or refused it, the clock is running. The administrative case is already open. The 30-day window doesn’t wait for you to feel ready.

I’ve defended DUI cases in Georgia for over thirty-six years — refusals, submissions, roadside tests, blood draws, prescription drug cases, and every variation in between. Every case is different. What you do in the next thirty days matters more than what happened the night of the arrest.

Call Attorney Leon Hicks Today

☎️ (770) 471-5001 ? leonhickslaw@gmail.com ? 194 S. Main Street, Jonesboro, Georgia 30236