Refusing a roadside alcohol test because of crash injuries
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Founding Attorney, 1LAW · Last reviewed November 2023
Legal Inquiry
Consumer Legal Issue
I was the driver in a single-vehicle accident, the only person involved. I refused an alcohol test at the scene because I was in excruciating pain from my injuries from the accident, which included [the message breaks off here].
Attorney Answer
It depends on which test you refused. If it was a handheld test at the roadside, before any arrest, the Supreme Court of Georgia has held that the refusal cannot be introduced at trial. If it was the state's test after an arrest and the implied-consent notice, a license suspension and a short hearing window follow, and whether your injuries meant you could not take the test, rather than that you refused it, is a question for a DUI lawyer.
A roadside test. In Ammons v. State, 315 Ga. 149, 880 S.E.2d 544 (2022), the Court held that refusing a preliminary roadside breath test, or field sobriety tests that need the suspect's cooperation, is protected, so the refusal cannot be introduced at trial.
The state's test after an arrest. Georgia's implied-consent law, O.C.G.A. § 40-5-55, deems a driver arrested for driving under the influence to have consented to state testing of blood, breath or urine. Under O.C.G.A. § 40-5-67.1, refusing that test leads to a license suspension of at least one year, and the hearing request, with the fee, is due within 30 days of the notice, or the hearing is waived. If what you refused was a blood test, the Court has allowed the refusal to be mentioned at least to explain why there is no result, in State v. Randall, 315 Ga. 198, 880 S.E.2d 134 (2022).
Pain, or inability. Whether a test was refused can turn on whether you were physically able to take it. In Chamberlain v. State, 246 Ga. App. 423, 541 S.E.2d 64 (2000), a driver who gave one adequate breath sample but could not give a second because of a medical condition was held not to have refused. A choice to decline because of severe pain is a different situation, and how your injuries bear on it is for a DUI lawyer to assess.
What you can do
1. Talk to a Georgia criminal defense lawyer before you speak to the police, an insurer or anyone else about this, and do not write out your account of what happened for anyone in the meantime. What you say can be used as evidence.
2. Find every paper you were given at the scene or afterward: any citation, any implied-consent notice, and any license-suspension notice.
3. Keep the medical records from the crash, especially those describing your injuries and pain that night.
4. If you were charged, find out whether the case is still open.
5. Even if you are handling this yourself, you would be best served by a brief phone consultation with a local Georgia attorney before you act. Most lawyers offer a short initial call at no cost, and a few minutes on your specific facts — and on how your court actually handles this — is worth more than any general guidance, including this page.
⏱ Time limits apply. A hearing on an implied-consent suspension must be requested within 30 days of the notice under O.C.G.A. § 40-5-67.1. If that time has passed, a lawyer can tell you what, if anything, can still be done. Any criminal case runs on the dates in its papers.
Cases Cited
Published decisions relevant to this issue, provided as legal background rather than advice about any particular case.
- Ammons v. State, 315 Ga. 149, 880 S.E.2d 544 (2022) — Supreme Court of Georgia
Refusals of a roadside breath test and of cooperative field sobriety tests cannot be introduced at trial. - State v. Randall, 315 Ga. 198, 880 S.E.2d 134 (2022) — Supreme Court of Georgia
A blood-test refusal may be mentioned at least to explain the absence of a result. - Chamberlain v. State, 246 Ga. App. 423, 541 S.E.2d 64 (2000) — Court of Appeals of Georgia
A physical inability to give a second sample was not a refusal.
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Frequently Asked Questions
Can I refuse a roadside breath test in Georgia?
Under Ammons v. State, 315 Ga. 149, 880 S.E.2d 544 (2022), refusing a preliminary roadside breath test, or field sobriety tests that need the suspect's cooperation, is protected, and the refusal cannot be introduced at trial.
What happens if I refuse the state's chemical test in Georgia?
Under O.C.G.A. § 40-5-67.1, refusing the state-administered test after the implied-consent notice leads to a license suspension of at least one year, and a hearing must be requested in writing, with the fee, within 30 days of the notice or it is waived.
Is being unable to give a breath sample a refusal in Georgia?
Not necessarily. In Chamberlain v. State, 246 Ga. App. 423, 541 S.E.2d 64 (2000), a driver who could not give a second breath sample because of a medical condition was held not to have refused the test.