Can a refusal to take a breath or blood test be used against an underage driver at trial?

Yes. Under O.C.G.A. § 40-6-392(d), a driver's refusal to submit to chemical testing is admissible at trial as evidence of consciousness of guilt. Prosecutors routinely argue to juries that refusal indicates the driver knew they were impaired. However, experienced defense counsel can challenge this inference by presenting legitimate alternative explanations for the refusal, such as fear of needles in the case of a blood draw, general distrust of the testing process, or a misunderstanding of the consequences. How refusal evidence is addressed at trial is a critical strategic decision that should be evaluated carefully with an experienced DUI defense attorney.

Does an underage driver who refuses a chemical test still have a right to independent testing in Georgia?

Yes. Under O.C.G.A. § 40-5-55(b), even a driver who refuses the State-administered chemical test retains the right to obtain an independent chemical test at their own expense. Law enforcement is required to assist the driver in obtaining that independent test after completing the implied consent process. If law enforcement prevents or unreasonably delays access to independent testing, suppression of State-administered evidence and other remedies may be available under Georgia case law. For underage drivers, preserving all available legal options from the moment of arrest is essential, which is why contacting an experienced DUI defense attorney as quickly as possible is critical.

How can Brett Willis Law LLC help with an underage DUI refusal case in Georgia?

Brett Willis Law LLC defends underage drivers facing DUI refusal charges and license suspension proceedings throughout Gainesville, Hall County, and North Georgia. Attorney Brett Willis — named to The Fulton County Daily Report's 10 Lawyers You Need to Know, recognized as a Harvard Law School Trial Advocacy Program Instructor, and rated by Super Lawyers — brings extensive trial experience to every underage DUI case. The firm acts immediately to request ALS hearings before the strict 30-day deadline, challenge the sufficiency of the implied consent notice, contest the evidentiary use of refusal at trial, and evaluate every available suppression argument. With a hard one-year license suspension and criminal DUI exposure both at stake, experienced legal representation is essential. Contact Brett Willis Law LLC for a free consultation.

What Happens if an Underage Driver Refuses a Breathalyzer or Blood Test?

What Happens When an Underage Driver Refuses a Breathalyzer or Blood Test in Georgia

Georgia’s implied consent law applies to all drivers on the state’s public roads, but the consequences of refusing a chemical test are particularly severe for drivers under the age of 21. Understanding these consequences — and the procedural rights that apply in the aftermath of a refusal — is critical for any young driver and their family facing this situation.

Georgia’s Implied Consent Law

Under O.C.G.A. § 40-5-55, any person who operates a motor vehicle in Georgia is deemed, by virtue of that operation, to have consented to chemical testing of their blood, breath, or urine for the purpose of determining the presence of alcohol or drugs. This consent is ‘implied’ by the act of driving on Georgia roads and applies regardless of whether the driver is aware of it.

When a law enforcement officer has reasonable grounds to believe a driver is operating a motor vehicle in violation of Georgia’s DUI statutes, the officer may request a chemical test. The officer is required by O.C.G.A. § 40-5-67.1 to read the driver the appropriate implied consent warning before requesting the test, advising the driver of their right to independent testing and the consequences of refusal. The required implied consent notice differs slightly depending on the driver’s age and whether the alleged violation is DUI or another implied consent offense.

The Under-21 Standard and Why Refusal Matters More

Georgia imposes a stricter DUI standard for drivers under the age of 21. Under O.C.G.A. § 40-6-391(k), it is unlawful for a person under 21 to operate a motor vehicle with a BAC of 0.02 grams or more — substantially lower than the 0.08 gram threshold that applies to adult drivers. This means that even a very small amount of alcohol consumption can result in a DUI charge for an underage driver.

Because the evidentiary bar is lower for underage drivers, a chemical test result — even a modest one — can be highly incriminating. Some underage drivers make the decision to refuse the chemical test in an attempt to avoid providing evidence against themselves. However, Georgia law imposes immediate and significant administrative penalties for this refusal, and those penalties apply separately from and in addition to any criminal prosecution.

Immediate Consequences of Refusal for an Under-21 Driver

When an underage driver refuses to submit to a breath or blood test, the arresting officer is authorized — and indeed required under Georgia law — to immediately confiscate the driver’s license and issue a temporary driving permit in the form of a Georgia Department of Driver Services (DDS) form. This form serves as a 30-day temporary license and puts the driver on notice of the following consequences:

The driver’s license will be suspended for a period of one full year under O.C.G.A. § 40-5-67.1(d).
During this one-year period, the driver is not eligible for any form of limited driving permit, including a work permit or school permit.
The suspension is a hard suspension — there is no restricted license option for underage drivers who refuse testing under the implied consent law.

This stands in contrast to adult drivers (21 and over) who refuse a chemical test and may, in some circumstances, be eligible for an ignition interlock-based limited permit after a waiting period. For underage drivers, no such option exists. The consequence is an absolute prohibition on driving for twelve full months from the effective date of the suspension.

The ALS Hearing: A Critical Deadline

The license suspension resulting from a test refusal is an administrative action — separate from the criminal DUI case — and it does not take effect automatically and irrevocably. A driver who disagrees with the suspension has the right to contest it through an Administrative License Suspension (ALS) hearing.

Under O.C.G.A. § 40-5-67.1, the driver (or their attorney) must request an ALS hearing within 30 days of the arrest date. This deadline is strictly enforced. Failure to request a hearing within 30 days results in the automatic suspension becoming effective on day 46 after arrest, with no further opportunity to contest it through the administrative process.

An ALS hearing is conducted before an administrative law judge of the Georgia Office of State Administrative Hearings (OSAH). At the hearing, the State bears the burden of proving: that the officer had reasonable grounds to believe the driver was in violation of Georgia’s DUI laws; that the implied consent notice was properly read; that the driver refused the test; and that the driver was lawfully placed under arrest. If the State fails to establish any of these elements, the suspension may be rescinded.

Impact on Criminal Proceedings

The refusal to submit to a chemical test has consequences not only in the ALS proceeding but also in the criminal DUI case. Under O.C.G.A. § 40-6-392(d), the fact of the refusal is admissible at trial as evidence of consciousness of guilt. Prosecutors regularly argue to juries that a driver’s refusal to submit to testing is evidence that the driver knew they were impaired.

Defense counsel addresses this inference directly, often by highlighting that drivers may refuse testing for reasons unrelated to actual impairment — such as fear of needles in the case of a blood test, distrust of the testing process, or simply a lack of understanding of the consequences. Nevertheless, the evidentiary use of refusal is an important strategic consideration when advising any client facing this situation.

The Role of Independent Chemical Testing

Even after refusing a State-administered test, Georgia law under O.C.G.A. § 40-5-55(b) preserves a driver’s right to obtain an independent chemical test at their own expense. Law enforcement is required to assist the driver in obtaining this independent test after the implied consent process has been completed. If law enforcement prevents or unreasonably delays a driver’s access to independent testing, suppression of any State-administered test and other remedies may be available under Georgia case law.

For underage drivers who have refused, retaining an experienced DUI defense attorney immediately is essential to protect both the administrative license rights and the criminal defense. The 30-day ALS hearing deadline begins running from the moment of arrest.

Brett and his team were beyond supportive, helpful, gracious, caring and knowledgeable! We went through the most challenging and difficult time in our life and he was there every step of the way. With results we could never have imagined but definitely prayed for.

Not to mention his level of professionalism. From the first time we spoke to the first time we saw him in court. He stood out from almost every other attorney there. We were so appreciative that our attorney looked and was so professional, pulled together and prepared. When so many others were none of these things.

Thank you just doesn’t seem like enough to convey our feelings and appreciation.

Karen L.

I tried to write this several times and it brought me to tears. First may I say this has been the hardest three years of my life. Five lawyers I interviewed and none even understood the law as it applied to my case. So I thought I would try one more and it was Brett. From our first conversation together I knew he understood the law and was the perfect one for the case. I want to say how he prepared the case and presented it, achieving a full dismissal and ruling the police violated my first amendment rights. Complete genius!!!!

If you're reading this review and unsure, stop...call Brett. He always returned my call or texts within a couple hours, never more than 24 hours. He was always courteous and knowledgeable, trust me he talked me off the ledge a couple times. I would have given him 10 stars but 5 was the only option. Thank you Brett for all you did for me!!!!!