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I Took A Breath Test But Still Marked As A Refusal


I Took A Breath Test, But Still Marked As A Refusal!?

Often, potential clients come in explaining how they took a breath test, but were still marked as arefusal after their DUI arrest. This presents unique challenges, as a DUI refusal charge in Georgia carries much tougher license consequences than a DUI test case. This article will explain how you were likely labeled a DUI refusal, even after you agreed to and took a breath test during your arrest.

What is a DUI Refusal in Georgia?

A DUI refusal in Georgia is not one of the five DUI charges specifically, but rather a classification for driver's license suspension purposes. The five types of DUIs are:

  1. DUI alcohol per se: for testing over the legal limit
  2. DUI alcohol less safe: based on the officer's opinion that alcohol made you less safe to drive
  3. DUI drugs less safe: based on the officer's opinion that drugs made you less safe to drive
  4. DUI alcohol and drugs less safe: based on the officer's opinion that some combination of alcohol and drugs made you less safe to drive
  5. DUI inhalants: based on the officer's opinion that an inhalant made you less safe to drive

As you can see, a DUI refusal is not an actual type of DUI. However, DUI refusals can carry both license and trial consequences.

How Did I Take A Breath Test and Still End Up A Refusal?

When investigating a DUI, cops are trained to use two types of breath tests if alcohol is suspected. The first test, a preliminary breath test, is usually given during the cop's initial encounter and investigation of you at your vehicle. This breath test, commonly called a PBT, is usually about the size of a cell phone and tests for alcohol in your system. Cops usually tell drivers that the test does not actually give a number or alcohol level, though this is not true. The PBT devices used do give a numeric alcohol level and these numbers are often reported to the prosecutor through the officer's police report. While this practice is seemingly deceptive, so far, it has been approved by courts throughout Georgia.

The second type of breath test used in an alcohol DUI is the official state test given post-arrest. Currently, Georgia has two machines approved for use for this official state test: the Intoxilyzer 5000 and the Intoxilyzer 9000. Both machines are made by the Kentucky company, CMI, Inc., and have an exclusive contract with the State of Georgia. You are required to give this breath test under Georgia's implied consent law and a failure to submit to testing is what constitutes a refusal. This official test is usually given at the police station or a jail and you should have a print out of test results if you did, in fact, take the test. The numeric alcohol level given on this test is admissible in hearings and trial, assuming the prosecutor can meet their burden for the evidence to be admissible. Further, if you refuse to take this state test, the prosecutor can use your refusal against you at trial as evidence that the test, if taken, would have shown alcohol in your system.

The most common source of confusion for drivers who took a test, yet still ended up with a refusal DUI comes from confusing these two tests. You can be fully cooperative before you were arrested and perform every test the cop asks for, including a PBT, however, if you decline to take the test after you are placed under arrest, your refusal is noted on your citations and submitted to the Dept. of Driver Services.

How A DUI Refusal Impacts Your Driver's License

If an officer reads you Georgia's implied consent notice and you refuse testing, the officer is trained to submit a 1205 Form, along with your license, to the Dept. of Driver Services. This will initiate a driver's license suspension that will go into effect 30 days after your arrest if you do not file an appeal. Once released, you should be given a copy of the 1205 Form that explains how to file an appeal in your license case.

Georgia law calls for a 12 month license suspension on DUI refusal cases, with no hardship, work, or other permit available. This is the single most important piece of information to remember when fighting a DUI refusal case. Under the law, if you do not challenge the refusal, or cannot reach an agreement with the arresting officer to dismiss the refusal hearing, your license suspension is 12 months, no questions asked. Of course, as DUI attorneys, we have methods of defending DUI refusal cases with the goal of keeping your license intact and unsuspended. We will talk at length about this process and how we go about defending refusal cases in courts around Georgia.

How A DUI Refusal Can Be Used By the Prosecutor at Trial

If your case goes to trial in front of a judge or jury, the prosecutor will attempt to use the refusal to take a test against you. Of course, it's seemingly logical, yet oversimplified to say "you refused the test because you were hiding the fact you had been drinking." However, this is exactly the inference that current Georgia law allows. In fact, a judge will instruct the jury that:


While the judge will instruct the jury that they cannot convict you based only on your refusal, they are allowed to consider this evidence along with other admissible evidence.

Why Chose Zeliff | Watson for your DUI Refusal Case?

At Zeliff | Watson, we have successfully defended hundreds of DUI Refusal cases in Forsyth and throughout Metro Atlanta and North Georgia. We understand that there are infinite reasons, other than hiding something, that drivers refuse testing and we know how to effectively communicate these reasons to a prosecutor, judge, or jury. If you have been charged with a DUI Refusal, don't fall victim to a quick guilty plea in an attempt to save your license. At our law firm, we strive to both save your driver's license and have your DUI charge reduced or won at trial. After you have read about our law partners and what other clients have to say, call or email us through our contact form to setup an initial consultation to discuss our approach to your refusal defense.

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