Implied Consent Law in California DUI Cases

California’s implied consent law requires any motorist lawfully arrested for DUI to submit to a breath or blood test to determine his/her blood alcohol concentration.

Vehicle Code 23612 states that:

“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. If a blood or breath test, or both, are unavailable, then paragraph (2) of subdivision (d) applies.”

Please note that this law only applies to breath or blood tests after a lawful DUI arrest. This means that a driver can still refuse to take a preliminary alcohol screening (PAS) breath test before an arrest takes place.

A driver will receive certain penalties for violating the implied consent law. The major consequences include:

1. increased penalties in addition to the standard California DUI penalties, and
2. a mandatory driver’s license suspension that will occur regardless of the outcome of a person’s DUI case.

Traditionally, California’s implied consent law applied to DUI blood tests as well as to breathalyzer tests. But the Supreme Court of the United States, in the case of Birchfield v. North Dakota, suggested that defendants may not be penalized for refusing to take blood tests in cases where the police have not obtained a warrant.

There are three conditions, though, in which law enforcement can require a person to take a blood test. These are when there is:

1. a warrant for the test,
2. suspicion of a California felony DUI, and/or
3. suspicion of DUID, per Vehicle Code 23152f and 23152g.

Please note that the implied consent law applies to all motorists in California. This includes both:

• California residents that have a California State license, and
• Non-California residents holding an out-of-state license.

Our California DUI attorneys will highlight 7 key things to know about implied consent in California:

• 1. What is California’s implied consent law?
• 2. What is a pre-arrest PAS breath test?
• 3. What are the consequences of refusing to take a blood or breath test?
• 4. Does the implied consent law apply to chemical test refusals after a lawful DUI arrest?
• 5. What are the conditions in which police can require a person to take a blood test?
  • 5.1 Warrant
  • 5.2 Suspicion of California felony DUI
  • 5.3 Suspicion of DUID
• 6. Are there defenses available for a DUI test refusal charge?
• 7. Does the implied consent law apply to all drivers in California?

1. What is California’s implied consent law?

California’s implied consent law makes it mandatory for any driver in the State, who has been lawfully arrested for DUI, to submit to a breath test to determine his/her blood alcohol content (BAC).¹

A driver that violates this law (for example, refuses to take a breath test) will receive certain penalties. These include:

1. increased penalties in addition to the standard California DUI penalties, and
2. a mandatory driver’s license revocation by the DMV that occurs regardless of the outcome of a person’s DUI case.

California’s implied consent law used to apply to DUI blood tests as well as to breath tests. But the Supreme Court of the United States suggested that defendants may not be penalized for refusing to take blood tests in cases where the police have not obtained a warrant.

Please note that this law only applies to breath and blood tests after a lawful DUI arrest. This means that a driver can still refuse to take a roadside breath test before an arrest takes place.

2. What is a pre-arrest PAS breath test?

After a driver is pulled over for DUI, but before he is arrested, the driver may be asked to take a hand-held preliminary alcohol screening (PAS) breath test.²

This is basically a roadside breath test. And, it is just another field sobriety test (FST) – like walking in a straight line, or bringing a finger to the nose. An FST simply helps police decide whether or not to arrest someone for DUI.

There is no penalty for refusing to take a PAS breath test unless a person is either:

• under the age of 21, or
• on probation for a prior DUI conviction.³

Further, as long as a person is at least 21 and not on DUI probation, refusal to take a PAS test may not be admitted at trial as evidence of guilt.⁴

Note though that if a driver does agree to a PAS test, the test results can be used to help convict him of a DUI.⁵

3. What are the consequences of refusing to take a blood or breath test?

There are basically two potential consequences for refusing a breath test in California and violating the implied consent law. These are:

1. a driver will lose his driver’s license for some period of time after refusing the test, and
2. he will face enhanced penalties in addition to the standard California DUI penalties.

The enhanced DUI breath test refusal penalties are:

• for a first DUI offense, an additional 48 hours in county jail and a minimum nine-month California DUI school (in lieu of the three-month program for first-time DUIs that don’t involve refusals);
• for a second DUI offense within ten years, an additional 96 hours of county jail time;
• for a third DUI offense within ten years, an additional 10 days in county jail; and
• for a fourth or subsequent DUI offense within ten years, an additional 18 days in county jail

4. Does the implied consent law apply to chemical test refusals after a lawful DUI arrest?

California’s implied consent law is questionable when examined in the context of chemical tests following a lawful DUI arrest.

The law used to apply to both breath and blood tests in California. But in 2016, the Supreme Court of the United States issued a decision called Birchfield v. North Dakota. The case said that it is unconstitutional for a state to make it a crime to refuse a blood test without a lawful warrant.

The Birchfield case dealt with states that make it a separate crime to refuse a DUI blood test after an arrest. California, in contrast, just imposes additional penalties on DUI defendants for chemical test refusals. So, it remains for courts to decide if this is also unconstitutional-and thus if California’s “implied consent” law cannot be applied to blood tests.

5. What are the conditions in which police can require a person to take a blood test?

There are three conditions in which police can require a person to take a blood test. These are when there is:

1. a warrant for the test,
2. suspicion of a California felony DUI, and/or
3. suspicion of DUID.

5.1. Warrant for a chemical test

Police officers can require a person to submit to a blood test when they have a valid warrant for it.

A warrant is issued by a judge and provides the legal authorization for, in this context, a chemical test.

5.2. Suspicion of a California felony DUI

California police officers may use a forcible draw of a person’s blood for a DUI chemical test when

• they suspect a felony DUI, and
• a warrant cannot be quickly obtained.

A DUI becomes a felony when:

• it causes injury⁶,
• the defendant has three or more DUI or wet reckless convictions within the prior 10 years⁷, and
• the defendant has at least one prior felony DUI conviction.⁸

5.3. Suspicion of a DUID

An officer can require a driver to submit to a DUI blood test if he has a clear indication that it would show the presence of drugs.

An officer may gain a “clear indication” via:

• a driver’s statements,
• objective symptoms of drug intoxication, and/or
• physical evidence of drug use.

6. Are there defenses available for a DUI test refusal charge?

There is one common defense that a driver’s defense lawyer can raise if he is charged with a DUI test refusal. This is to show that his arrest was not “lawful.” An example is if the arresting officer did not have probable cause for a DUI stop or arrest.

If an arrest was not lawful, then a motorist never gave implied consent to a breath test. This defense can work to dismiss an entire DUI case.

7. Does the implied consent law apply to all drivers in California?

The implied consent law applies to all motorists in California. This includes both:

• California residents that have a California State license, and
• Non-California residents holding an out-of-state license.

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