Confusion About Being Accused Of Refusing To Take A Breath Test In Georgia

Every day, prospective clients tell me that a person's DUI citation says "refused,” but they in fact did take a breath test.  This is the single most-asked question I receive.

In Georgia, after a person is arrested the police officer should read the Georgia Implied Consent Warning.  On the warning a person is asked to submit to the State-Administered test of their breath, blood, urine, or other bodily substances.

Many people refuse because they feel like they have already cooperated and have provided a test.  However, the road-side Alco-sensor is not the official test requested in the implied consent warning.  The “official” test is on the Intoxilyzer 5000 or now the new Intoxilyzer 9000.

Furthermore, the implied consent warning contributes to the misunderstanding as well.  It talks about the "State-administered test," as if the Governor of Georgia is going to do it himself.  The wording of the notice makes almost no sense at all, and most police officers read it at warp speed.

I have advocated for years for what I call a fairer implied consent warning.  People are penalized in Georgia when they refuse a test.  Many people, as noted above, think they already provided a test as well.

To fix the problem, the warning should tell people that: “If you submitted to a road-side breath test on a portable Alco-sensor, that was not the official State-Administered breath test, and the results on the portable machine cannot be used in evidence against you.  You are now being asked to submit to the official State-Administered breath test and the consequences for refusal include but are not limited to…”

This simple change would inform people of their actual situation so that an informed decision could be made.  It would prevent what I like to call the “confused refusal,” from what would otherwise be a fully cooperating person.