What’s the legal approach to challenging breathalyzer calibration in Georgia DUI cases?
A challenge attacks the machine’s permit, the operator’s training, the test procedure, and the science behind the number. In Georgia, O.C.G.A. § 40-6-392(a)(1)(A) requires testing “according to methods approved by the Division of Forensic Sciences,” on a machine “operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order,” by someone with a valid permit.
Statutory checks.
| Item | Proof |
|---|---|
| Machine | Certificate of inspection, under § 40-6-392(f) |
| Operator | Permit; training |
| Observation period | Protocol requires watching the person for a set time |
| Two samples | Sequential within 0.020 of each other; § 40-6-392(a)(1)(B) |
| Time | Under § 40-6-391(a)(5), within three hours of driving |
| Independent test | Right under § 40-6-392(a)(3) |
Getting data. The Intoxilyzer’s records and certificates may be available through discovery or Open Records. A lawyer may ask for the source code; Georgia courts have made that difficult, and an out-of-state subpoena under § 24-13-90 may be required when the manufacturer is elsewhere.
Science. Mouth alcohol, reflux, breathing pattern, body temperature, and the absorption stage can affect readings. Under § 24-7-702, an expert must apply reliable methods.
Refusal. Elliott v. State (2019) held that the Georgia Constitution protects a refusal to take a breath test from being used as evidence at trial. It’s separate from the implied consent license consequences.
Implied consent. The officer must read the correct notice in § 40-5-67.1(b). Olevik v. State (2017) held that the notice’s wording isn’t coercive by itself, so a challenge looks at what else happened at the stop.
License. The 30-day period in § 40-5-67.1(g) runs on its own, and a hearing may give a chance to question the officer.
General information about Georgia law as of November 2026. It is not legal advice and does not create an attorney-client relationship.