Somewhere in Georgia tonight, an officer is going to arrest someone for DUI, pull out a card, and read this sentence off it:

"Your refusal to submit to blood or urine testing may be offered into evidence against you at trial."

Half of that sentence is not true. It hasn't been true since January 2022. Nobody has changed the card.

That is a strange thing for a state to be doing, and the way it happened is stranger, because Georgia got most of the way to fixing this and then stopped.

What the Supreme Court actually did in 2019

Start with Elliott v. State, decided February 18, 2019.

Elliott was stopped for traffic violations, admitted she'd been drinking, and was arrested for DUI. She refused a breath test. The State wanted to tell the jury she refused — because at the time, two Georgia statutes said it could. Section 40-5-67.1 (b) put the warning in the officer's mouth, and § 40-6-392 (d) made the refusal admissible.

The Fifth Amendment wouldn't have helped her. The United States Supreme Court has held that the federal right against self-incrimination doesn't bar using a test refusal, in part because it gives you no right to refuse in the first place.

But Georgia's constitution is not the federal one. Article I, Section I, Paragraph XVI says "No person shall be compelled to give testimony tending in any manner to be self-incriminating," and in Olevik v. State two years earlier our Supreme Court had held that "testimony" in that clause covers acts, not just words — and that blowing deep lung air into a machine, "strong[ly]," "deeply," and "unnaturally," for several seconds, is an act. You have a state constitutional right to refuse it.

Elliott took the next step. If you have a right to refuse, the State can't punish you at trial for exercising it. The Court's conclusion:

"OCGA §§ 40-5-67.1 (b) and 40-6-392 (d) are unconstitutional to the extent that they allow a defendant's refusal to submit to a breath test to be admitted into evidence at a criminal trial."

All the Justices concurred. Two were disqualified. Nobody dissented.

And then the Court did something worth noticing. It flagged the mess it was leaving behind, and said whose job it was:

"This decision may well have implications for the continuing validity of the implied consent notice as applied to breath tests, but revising that notice is a power reserved to the General Assembly."

That is a court telling a legislature: your turn.

The General Assembly took the assignment. Partly.

Here is the implied consent notice for drivers 21 and over as it read when Elliott was arrested, quoted in the Court's own footnote:

"Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances... Your refusal to submit to the required testing may be offered into evidence against you at trial..."

And here is the same notice today, § 40-5-67.1 (b) (2):

"The State of Georgia has conditioned your privilege to drive upon the highways of this state upon your submission to state administered chemical tests... Your refusal to submit to blood or urine testing may be offered into evidence against you at trial..."

Look at what got changed. Three things, and all three are precise:

  1. "Georgia law requires you" became "the State of Georgia has conditioned your privilege to drive." Because after Olevik, the State cannot require it. It can only make it a condition of a license.
  2. "the required testing" became "blood or urine testing." That is the Elliott fix, exactly. Breath comes out.
  3. "required" became "requested" everywhere else it appeared.

That is not sloppy drafting. That is somebody sitting down with the opinion and working through it. The amendment is Ga. L. 2019, p. 295, § 2 — House Bill 471, enacted in the same session Elliott came down. I can't prove intent from a history line, but three edits that track three separate holdings is not a coincidence I feel obligated to entertain.

Now look at what nobody touched.

The statute is still sitting there

Section 40-6-392 (d) reads, in full, today:

"In any criminal trial, the refusal of the defendant to permit a chemical analysis to be made of his blood, breath, urine, or other bodily substance at the time of his arrest shall be admissible in evidence against him."

Elliott held that statute unconstitutional as to breath. By name. In the same sentence as § 40-5-67.1 (b).

The legislature amended the notice and left the statute alone. Pull up § 40-6-392 and read the history line: the last amendment is Ga. L. 2011, p. 705. Fifteen years ago. Four years before Williams, six before Olevik, eight before Elliott.

So the code section that a prosecutor cites, and that a trial judge pulls up on the bench, still says on its face that a breath refusal comes in — seven years after the Supreme Court of Georgia said it doesn't.

Then it got worse

January 19, 2022. Awad v. State.

Omar Awad refused a urine test. Same question, different bodily fluid: is producing a urine sample on command an act, the way blowing into a machine is?

The Court said yes, and the reasoning is hard to argue with. Urination is natural. Urinating into a container, at the time and in the manner the State directs, in a quantity adequate for chemical analysis, is not. The State is asking you "to affirmatively give the State evidence from the defendant's body in a particular manner that is neither natural nor automatic." So:

"We hold that, under Olevik, the right against compelled self-incrimination protected by Paragraph XVI affords a defendant the right to refuse to give the State a urine sample in a collection container, as directed by the State, for purposes of chemical testing. We further hold that, under Elliott, the State may not admit in a criminal trial evidence that the defendant refused to submit to such a test."

Judgment reversed. All the Justices concur.

That was four and a half years ago. Since then:

  • § 40-6-392 (d) still lists urine. Not amended.
  • The implied consent notice still says "blood or urine testing may be offered into evidence against you at trial." Not amended.

In 2019 the General Assembly went through that notice with a scalpel. In 2022 the Court handed it the identical problem with a different word in it, and nothing happened.

Blood is a real question, and it's open

Blood is genuinely different, and I want to be careful here, because this is where people overreach.

A blood draw doesn't require you to do anything. Somebody else puts in the needle. The Supreme Court has said, more than once, that drawing blood doesn't implicate the right against compelled self-incrimination at all — so Elliott and Awad do not reach it.

That was the holding of State v. Dias, decided March 13, 2025. A Fulton County trial court had thrown out a blood-test refusal by reading Elliott too broadly, and the Supreme Court vacated it. If you are arguing blood refusals under Paragraph XVI, you are going to lose.

But read what the Court did not do. It stopped one step short and said so out loud: whether a blood refusal is inadmissible on other grounds "remains an open question, on which we express no view today."

And four of the nine Justices wrote separately to point at one of those grounds. Georgia's Rule 403, O.C.G.A. § 24-4-403, lets a court exclude relevant evidence when its probative value is substantially outweighed by the danger of unfair prejudice. The concurrence worked through why refusing a warrantless blood draw proves almost nothing about guilt, and it did it by listing the reasons an innocent person says no. They might be busy. In a bad mood. Late to work or to pick up a child. Wary of prolonging an encounter with police. Standing on principle. Or, in the concurrence's own words, when the search involves "needles puncturing their skin," they "might just have a thing about needles and/or the sight of their own blood."

"All of those are perfectly good reasons not to consent. None of those reasons offer any basis for suspecting the nonconsenting person of a crime."

Four Justices telling trial courts where to look is not a holding. It is also not nothing. The majority remanded for consideration of "any other basis for excluding such evidence raised in the proceedings below"; the concurrence went further and said the trial court should resolve Rule 403 before reaching any constitutional issue — while noting, honestly, that Dias hadn't raised Rule 403 yet and nothing stopped her from raising it on remand.

What this is actually worth

Let me not oversell it, because the honest version is more useful.

If the State offers a urine refusal against you, it is inadmissible. That is not a clever argument, it is Awad, it is unanimous, and it has been on the books since 2022. And under Awad, the burden is on the State to show refusal evidence is admissible — not on you to show it isn't. If the answer you get is "the statute says it comes in," the statute is wrong and has been for four years.

If the State offers a blood refusal, Paragraph XVI is not your argument. Dias closed that door in March 2025. Rule 403 is a door the Supreme Court left visibly ajar, and nobody has walked through it yet at the appellate level. Untested is not the same as lost — but untested is also not a promise.

And there's a question I don't have an answer to. A person standing at the side of a road is being told, by the State, in the State's own scripted words, that refusing a urine test will be used against him at trial. That is false. Whether a false statement of consequence in the notice bears on the voluntariness of what the driver decides to do next is a question I have not seen squarely answered in Georgia, and I am not going to pretend I know how it comes out. I think it is worth litigating. That is a different sentence than "I think it wins."

What I am certain of is narrower and duller: Georgia is currently reading its drivers a warning that is wrong, out of a code section that is wronger, and the fix for both is about two sentences of legislative drafting that nobody has gotten around to.

Two footnotes for the lawyers

On the panels. Elliott — "All the Justices concur, except Warren and Ellington, JJ., disqualified." Boggs, J., concurred separately to stress that the scope of Olevik and Elliott "is limited to chemical tests of a driver's breath; they do not apply to tests of a driver's blood," which is exactly the line Dias later drew. Awad — "All the Justices concur." Dias — "All the Justices concur," with the Rule 403 concurrence authored by Peterson, P. J., and joined by Bethel, McMillian, and Pinson, JJ. (Peterson was sworn in as Chief Justice three weeks after Dias, on April 1, 2025; the opinion styles him as Presiding Justice and so do I.) Nothing in this line is physical precedent or a plurality. It is all binding.

On what I checked. Every quotation above is from the full text of the opinion, not a headnote or a case summary, and every statutory quotation is from the current code text rather than from anybody's description of it. I did that because I have been burned the other way: I once had a Court of Appeals holding sitting on a page I wrote myself that the court never actually wrote, because I trusted a secondary source that summarized it wrong. It got caught before it went live. That was luck as much as process, and it is why the process exists now. As of today I find no Supreme Court of Georgia decision in this line after Dias on March 13, 2025. If you are reading this later, check that before you rely on it.

Ed Napier is a criminal defense attorney in Douglasville, Georgia. This is general commentary on Georgia law, not legal advice about anyone's particular case — and if you have a particular case, the details will matter more than anything written here.

Cases discussed: Olevik v. State, 302 Ga. 228, 806 S.E.2d 505 (2017); Elliott v. State, 305 Ga. 179, 824 S.E.2d 265 (2019) (No. S18A1204, decided February 18, 2019); Awad v. State, 313 Ga. 99, 868 S.E.2d 219 (2022) (No. S21G0370, decided January 19, 2022); State v. Dias, 321 Ga. 260, 914 S.E.2d 291 (2025) (No. S24A1373, decided March 13, 2025).

Statutes discussed: O.C.G.A. §§ 40-5-67.1 (b), 40-6-392 (d), 24-4-403; Ga. Const. of 1983, Art. I, Sec. I, Par. XVI.