You Have the Right to Refuse a Breathalyzer and the State Can’t Use That Against You

You’re pulled over on suspicion of DUI in Atlanta. The officer asks you to take a breathalyzer. Do you have to comply? Can the state use the fact that you refused to cooperate against you in court? According to the Georgia Supreme Court, the answer to both questions is no.

Earlier this year, the Supreme Court held that the state’s implied consent law is unconstitutional. You cannot be forced to incriminate yourself in a criminal proceeding. As a result, the state cannot use your refusal to comply with a request for a breath test or blood test against you. Prosecutors will have to find other evidence if they want to charge you with DUI.

What is Implied Consent?

When you get behind the wheel and drive in Atlanta, you automatically agree to submit to chemical testing (e.g., breathalyzer or blood test) if the police stop you. At least, that used to be the case under Georgia’s implied consent law. Police didn’t have to get your verbal or written permission before performing a breathalyzer. You’d already consented to these tests just by driving on Georgia roads.

Refusal Under Georgia’s Implied Consent Law

Implied consent laws were designed to help law enforcement obtain evidence in a drunk driving case. The idea was that drivers should know that it’s illegal to operate a vehicle while drunk. Implied consent was intended to discourage drunk driving.

However, the state can’t physically force you to blow into a breathalyzer. So, to make sure that the law was enforceable, lawmakers said that your refusal to comply with a breath test can be used as evidence of intoxication in court.

You Have The Right to Not Incriminate Yourself

The only reason you’d refuse a breath test is because you’re drunk, right? That certainly could be a reason, but it’s not the only one. There are many reasons why a driver might want to decline a breathalyzer. Maybe you’re on medication that would interfere with an accurate reading. Or, perhaps you did have a drink or two before driving, but are afraid that the officers would get a mouth breath sample rather than a deep lung breath sample. Performed incorrectly, a breathalyzer can easily offer inaccurate results.

You don’t have to explain why you don’t want to take a breathalyzer. In a recent court decision, the Georgia Supreme Court held that the state’s implied consent law violates your right. You cannot be forced to incriminate yourself. The implied consent law essentially forced you to do just that.

If you’re stopped by police on suspicion of DUI in Atlanta you do not have to provide a sample of your breath or blood if you don’t want to. The police can only force you to comply with their requests for a breath or blood test if they get a court order.

Why Should I Decline a Breathalyzer?

Breathalyzers test a sample of your breath to determine your blood alcohol concentration (BAC). Your BAC is highest 30-60 minutes after consuming alcohol and declines over time. A breathalyzer can only tell police what your BAC is at a specific moment in time. It can’t tell them what your BAC was at an earlier point in time.

By declining a breathalyzer, you’re forcing the police to get a court order for a search warrant for a blood test. The officers will have to have probable cause to convince a judge that chemical testing is necessary. Getting a search warrant takes time. By the time the officers have gotten a court order – if they’re able to do so – your BAC will be less than it was when you were first stopped.

However, it’s important to consider that it’s much easier to contest breath test results than blood test results. Blood tests tend to be much more accurate and harder to disprove. You might want to consider this if you believe that the police will be successful in securing a court order for a sample of your blood.