Georgia Implied Consent Law and Test Refusal

Georgia’s implied consent law establishes that any driver using the state’s roads has, by that act, consented in advance to chemical testing of breath, blood, or urine if lawfully arrested for DUI. This framework, set out primarily in O.C.G.A. § 40-5-55 and § 40-5-67.1, has been substantially reshaped by Georgia Supreme Court decisions interpreting the state constitution, creating a more layered legal picture than the implied consent laws of many other states.

The Statutory Framework

Under § 40-5-55, driving on Georgia’s roads is treated as advance consent to chemical testing incident to a lawful DUI arrest. Section 40-5-67.1 governs how that consent is invoked in practice: an arresting officer must read a statutory implied consent notice in full, specifying which test is being requested (breath, blood, or urine) and informing the driver that refusing the test triggers a license suspension.

The Administrative Consequence of Refusal

Refusing the requested chemical test carries an administrative consequence separate from the criminal case itself: a one-year license suspension. This suspension is processed through Georgia’s administrative license suspension procedures, which operate independently of whatever happens in the underlying DUI prosecution. A driver can face this suspension regardless of whether they are ultimately convicted of or acquitted on the criminal DUI charge.

Olevik v. State and the State Constitutional Foundation

In Olevik v. State, 302 Ga. 228 (2017), the Georgia Supreme Court held that submitting to a breath test implicates the right against compelled self-incrimination found in the Georgia Constitution. This was a significant development because it recognized that Georgia’s state constitutional protection against self-incrimination is broader than the federal Fifth Amendment, extending beyond purely testimonial acts to reach the physical act of breath testing itself.

Elliott v. State: Refusal Evidence Excluded at Trial

Building directly on Olevik, the Georgia Supreme Court decided Elliott v. State, 305 Ga. 179 (2019), striking down the portions of § 40-5-67.1 and a related DUI statute to the extent they allowed a driver’s refusal to submit to testing to be used as evidence against the driver at a criminal trial. This holding rests on the Georgia Constitution rather than federal law. The U.S. Supreme Court, in Birchfield v. North Dakota (2016), had already held that the federal Fifth Amendment does not bar the use of refusal evidence at trial. Elliott does not disturb that federal baseline; it establishes an independent and broader protection under Georgia’s own constitution that federal law does not provide.

Refusal Does Not End the Investigation

A driver’s refusal to submit to the requested chemical test does not necessarily stop law enforcement from obtaining evidence through other means. Depending on the circumstances, officers may seek a search warrant authorizing a blood draw even after a driver has refused voluntary testing.

How the Pieces Fit Together

Taken together, this body of law produces a structure in which two consequences run on separate tracks. The criminal trial cannot use a driver’s refusal as evidence of guilt, under Elliott’s state constitutional holding. At the same time, the administrative license suspension for refusal proceeds on its own statutory track under § 40-5-67.1, unaffected by the criminal-trial limitation. The administrative hearing process associated with that suspension, along with the specific theories prosecutors use to prove DUI and the mechanics of field sobriety testing, are each governed by their own separate procedures and are not part of the implied consent framework itself.

This article provides general information about Georgia law and is not legal advice. Consult a licensed Georgia attorney about a specific situation.