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

Answer:

When an underage driver refuses a breathalyzer or blood test in Georgia, the consequences are severe and immediate. Under O.C.G.A. § 40-5-67.1, the arresting officer confiscates the driver’s license and issues a 30-day temporary driving permit. That refusal triggers an automatic one-year hard license suspension — with no eligibility for any limited or restricted driving permit during that period, unlike adult drivers who may qualify for an ignition interlock-based permit. The refusal is also admissible at trial as evidence of consciousness of guilt under O.C.G.A. § 40-6-392(d). The driver or their attorney must request an Administrative License Suspension hearing within 30 days of arrest or the suspension becomes automatic. Contacting an experienced DUI defense attorney immediately is critical to protecting both license rights and the criminal defense.

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.