Georgia DUI: Refusal to Take a Blood, Breath or Urine Test

In Georgia, if you get pulled over for a DUI and the officer asks you to take a blood, breath, or urine test, do you have to take one? What happens if you refuse?

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Implied Consent

Georgia law requires you to take a breath, blood, or urine test if you are arrested for a DUI. Georgia’s “implied consent” law says that if you are lawfully arrested by an officer who has probable cause to believe that you have been driving under the influence, then you consent to taking a chemical test of your blood, breath, or urine for the purpose of determining your blood alcohol content (BAC).  The test must be taken as soon as possible from the time when you were last driving. The officer gets to choose which test you take.

You could be arrested for a DUI even if you are not driving. If you have actual, physical control of the vehicle while under the influence, then that can be enough for an officer to arrest you. Actual, physical control means that the driver is in the car and can make it move or was recently in the car and is the only person who could have been driving it. In one case, a Georgia court decided that a person who had broken into a car and released the break so that the car began to roll had enough physical control of the car to be accountable for a DUI. (To read more about the meaning of actual, physical control, see the case Savage v. State, 252 Ga. App. 251 (2001). 

Once you are arrested the officer must read an implied consent notice to you that says if you refuse to take a chemical test, then your license will be suspended for at least one year and your refusal may be used against you in court. He or she must also explain that if you decide to take a test, then you have the option of asking for another test and you can choose who gives it, at your expense. Finally, the officer must ask you whether you are willing to take a chemical test under the implied consent law.

You can read Georgia’s implied consent law in Georgia Code Section 40-5-55.

Refusing to Take the Test

 

1st Offense

2d Offense

3rd Offense

Refusal to take test

Suspension of license for 1 year

Suspension of license for 3 years

Suspension of license for 5 years

Once you refuse to take a test, the officer will take your license right then. It its place, he or she will give you a 30-day permit. You can request a hearing to challenge the suspension within those 30 days. If you don’t request a hearing or if you do but lose your case, then your suspension will last for one year for your first refusal or if your last refusal was more than five years earlier. However, one month after your suspension begins, you can get your license back if you complete two steps. First, you have to finish an alcohol and drug-use risk reduction program and pay a fee of $210.00 (or $200.00 if by mail). For your second refusal within five years, you lose your license for three years. You can apply for reinstatement of your license after 18 months, but you also need to have taken the risk reduction program and pay the fee. For your third and any subsequent refusal, you lose your license for five years.  You must take the risk reduction program to get your license back, but you can apply only for a probationary license after two years of your suspension. Regardless of the term of your suspension, the state may ask you to take a driving test before it gives your license back.

The penalties for refusing to submit to a chemical test are found in Georgia Code section 40-5-67.2

Should You Refuse to Take a Mandatory DUI Test in Georgia?

It usually does not help you to refuse to take a blood, breath, or urine test when you are arrested for a DUI. In Georgia, the consequences for refusal are milder than those for a DUI, which include jail time, fines, community service and completion of an alcohol or drug-use risk reduction program. Refusing the test does not guarantee that you won’t be convicted – you can still be found guilty of a DUI even if your refusal means that the state does not have proof that your BAC was over.08%, the legal limit for those over 21. In fact, the prosecution can use your refusal against you by arguing that you refused the test because you knew that you were intoxicated and guilty of DUI.

Get Help With Your DUI

If you have been arrested on a DUI charge in Georgia or any other state, get help from an experienced DUI attorney. Unlike other traffic related charges, which might be worth fighting without a lawyer, conviction for a DUI has serious consequences – especially if the incident involved injury to people or property, or if it’s your second or subsequent DUI. To avoid or reduce the consequences, your best bet is to find an attorney who is knowledgeable about your state’s laws and about how the system works in your county’s court.

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