California’s DUI laws can be complex and confusing. In this section, our attorneys break down the rules and explain the process.
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Implied consent law is a maxim of state law saying that you are deemed to have consented to a breath test or blood test to measure your BAC if the police properly arrest you for driving under the influence (DUI/DWI). The purpose of this law is to help police officers measure your blood alcohol content (BAC) following a valid DUI arrest. A refusal to consent to a breath or chemical test can result in a
Some states even say that the implied consent law applies to preliminary breath tests (PBT). A PBT is basically another type of field sobriety test that authorities use to measure a person’s intoxication level. Depending on the state, a PBT refusal can lead to a driver’s license suspension and an arrest for drunk driving.
Note that in some cases a driver can challenge an alleged violation of a state’s implied consent law at a DMV hearing. These are administrative hearings where you challenge the DMV’s decision to suspend or revoke your driver’s license.
In addition, you can challenge an alleged violation of the law during your criminal trial for the DUI offense (if one gets filed).
Common ways you can challenge a violation of the law, either at a DMV hearing or during a criminal trial, are by showing that:
Under a state’s implied consent law, when motorists apply for a driver’s license, they give their consent to:
For example, California’s implied consent law is set forth in Vehicle Code 23612 VC. The California law reads:
“A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153.”1
A driver’s refusal to provide a breath or blood test following a DUI arrest amounts to a violation of a state’s implied consent law.
The specific penalties for violating an implied consent law will vary across different jurisdictions.
With that said, however, most state laws say that your state’s DMV can suspend your driving privileges for six to twelve months following a breath or blood test refusal.2
Suspension times will likely increase for those drivers with prior DUI convictions.
Further, a BAC test refusal can lead to enhanced DUI penalties if a person is later convicted of drunk driving. Enhanced penalties mean that a judge can impose a harsher sentence than for a normal DUI (for example, one with additional jail time).
Some states also provide that, should your DUI case go to trial, your refusal to take a chemical test will be admissible as evidence of guilt.3
State DUI laws differ as to whether a driver suspected of DUI can legally refuse to provide a preliminary alcohol screening (PAS) breath test (also referred to as a preliminary breath test).4
Some states say that the implied consent law only applies to breath or blood tests after a lawful DUI arrest. This means that a driver of a motor vehicle can still refuse to take a PAS test before an arrest takes place.5
But other states say that if a driver refuses a preliminary breath test (PBT), an officer may immediately seize that person’s driver’s license and arrest the person for DUI. Note, though, that the arresting officer cannot physically force the suspect to take the PBT.6
Most often, yes. Law enforcement officers usually have to warn a motorist of the consequences of refusing to comply with a state’s implied consent law.
Officers typically deliver this “implied consent warning” right after delivering Miranda warnings (where arrestees are informed they have the right to remain silent and get a lawyer, etc.).
Yes. Implied consent laws deserve extra attention when it comes to chemical tests following a lawful DUI arrest.
Most states extend their implied consent laws to both breath and blood tests (but not urine tests). In 2016, the Supreme Court of the United States ruled that it is unconstitutional for a state to make it a crime to refuse a blood test without a lawful warrant.7
This Supreme Court case dealt with states that make it a separate crime to refuse a DUI blood test after an arrest. Many implied consent laws, however, just impose additional penalties on DUI defendants for chemical test refusals. So, it remains for courts to decide if this is also unconstitutional and if a state’s implied consent law cannot in fact be applied to blood tests.
As an aside, note that most states say there are three situations where police can require a person to submit to a blood test. These are when there is:
As mentioned above, some states say that breath or blood test refusals can be used as evidence against defendants if they are charged criminally with DUI.8
Further, prosecutors may be less likely to extend a favorable plea deal to defendants who refused a breath or blood test. In addition, if the DUI case goes to trial, the prosecutor can argue that you refused to give test results to hide that you were drunk or high.
Most often, yes. If a state’s DMV suspends a person’s driver’s license because of an alleged breath or blood test refusal, the person can try to challenge the suspension at a DMV license suspension hearing.
A DMV license suspension hearing is an administrative hearing held at a state’s DMV office. During the hearing, you can try and raise a legal defense (see below) to show that law enforcement officers took your license without proper authority. You will likely regain your license if you can show that you did not violate your state’s implied consent law.
Note that a defendant’s criminal case for a DUI offense is entirely separate from a DMV case. Even if a person’s criminal charges get reduced or dismissed, the defendant’s driver’s license will remain suspended or revoked for having refused a breath or blood test. Drivers can only challenge a license suspension at a DMV hearing.
Most often, yes. Sometimes police wrongly claim that DUI suspects refused a breath or chemical test.
Depending on the facts of a case, DUI lawyers or a law firm may be able to use the following arguments to show that the police took a person’s driver’s license without authority:
DUI attorneys may be able to use these arguments in DMV hearings to try to save the defendant’s driver’s license.
Further, defendants may be able to raise these defenses in criminal court in an effort to exclude the state’s evidence that the defendant refused a test.
A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.
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