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Implied Consent

Implied Consent in California DUIs

In the context of California DUI laws, "implied consent" refers to the approval given to police by the driver of a motor vehicle, implying they are willing to be subjected to a DUI chemical test, even without verbally saying so.

This is the core of California's implied consent law, which makes it mandatory for a driver to submit to a breath or blood test to determine their blood alcohol content after a lawful DUI arrest.

Implied Consent in California DUIs
The implied consent law requires all motorists arrested for DUI to submit to a breath or blood test.

The implied consent law applies to all motorists in California, including local residents with a California state driver's license and non-residents with an out-of-state driver's license.

Suppose you decide to refuse to take a breath or blood test. In that case, you will face increased penalties on top of the standard California DUI penalties and a mandatory driver's license suspension by the Department of Motor Vehicles (DMV), regardless of the DUI case outcome.

Notably, this law applies only to breath or blood tests, also called chemical tests, after you are lawfully arrested for driving under the influence. You have the legal right to refuse a roadside DUI preliminary alcohol screening (PAS) device test before you are placed under arrest.

However, some law enforcement agencies use a handheld breath test device that qualifies as an official chemical test. You can still decline this test and ask for a blood test at a hospital instead.

California's implied consent law was passed long ago and applied to DUI breath and blood tests. The police can require someone to take a blood test if they are suspected of driving under the influence of drugs (DUID), under suspicion of a felony DUI, or if they obtained a warrant.

Implied Consent Law - Quick Facts

  • When you drive a vehicle in California, there is an understanding that if you are arrested on suspicion of DUI, you are giving your consent to submit to blood or breath tests to verify your blood alcohol content (BAC).
  • If you refuse to submit to a chemical test after a lawful DUI arrest, it will typically result in additional penalties, such as a driver's license suspension.
  • The implied consent law applies to all motorists, including those with California driver's and out-of-state licenses.
  • The implied consent law only applies to breath or blood tests after a lawful DUI arrest.
  • You can refuse to take a preliminary alcohol screening (PAS) breath test before you are arrested.
  • You do not have the legal right to consult with an attorney before deciding whether to submit to a test or which test to take (Miranda warning).
  • Since consent is implied, demanding a lawyer is typically considered a delay tactic to lessen your blood alcohol concertation (BAC) results.
  • Chemical test refusals can be used against you in court.

What Does the Law Say?

As noted, California's implied consent law requires motorist who is arrested for DUI to submit to a breath or blood test to determine their blood alcohol concentration.

Vehicle Code 23612 PC says, "(a)(1)(A) 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 their 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.

(B) If a person who drives a motor vehicle is lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153, he or she is deemed to have given his or her consent to chemical testing of his or her blood to determine the drug content of his or her blood. If a blood test is unavailable, the person shall be deemed to have given his or her consent to chemical testing of his or her urine and shall submit to a urine test.

(C) The testing shall be incidental to a lawful arrest and administered by a peace officer with reasonable cause to believe the person was driving a motor vehicle in violation of Section 23140, 23152, or 23153."

What is Implied Consent?

Under the implied consent law, the mere act of driving a motor vehicle, a driver implicitly agrees to submit to chemical tests (blood, breath, or urine) if police arrest them on suspicion of driving under the influence (DUI).

 Implied Consent Law

Implied consent is only enforced if you have been lawfully arrested (VC 23612). Suppose you refuse to conduct a field sobriety test during a traffic stop. In that case, you are not violating the implied consent law because you must first be arrested for it to apply.

The implied consent law requires that chemical testing be incidental to a lawful arrest and administered by a law enforcement officer who has reasonable cause to believe you were driving under the influence.

The chemical tests are designed to determine the alcoholic content of the blood or the presence of drugs in your system.

After you are pulled over for a suspected DUI, but before an arrest, police will often ask you to take a hand-held preliminary alcohol screening (PAS) breath test.

There is no penalty for refusing to take a PAS breath test unless you are under 21 or on probation for a prior DUI conviction. Refusing a PAS test cannot be admitted at trial as evidence of guilt.

When Can Police Require a Blood Test?

Sometimes, police can legally require a motorist to submit to a blood test, including the following situations:

  • If you are suspected of committing a felony DUI.
  • If you have three or more DUI or wet reckless convictions within ten years.
  • If you have at least one prior felony DUI conviction.
  • If the alleged DUI caused an injury to another person.
  • If you are suspected of driving under the influence of drugs (DUID), defined under Vehicle Code 23152(f) and 23152(g) VC.
  • When police have a clear indication that the test would reveal the presence of drugs through the driver's statements, symptoms of drug intoxication, or physical evidence of drug use.
  • When a judge issues a warrant for you to submit to a blood test.

What are the Penalties for a Refusal?

Suppose you decide to refuse to submit to a chemical test after you were arrested for DUI. In that case, you will typically face an administrative suspension of your driver's license by the California Department of Motor Vehicles (DMV), such as the following:

  • One-year license suspension for a first offense.
  • Two-year license suspension if there is a prior offense within ten years.
  • Three-year license suspension for two or more prior offenses within the same ten years.

There are also some additional penalties for a DUI conviction, such as the following:

  • A first-time DUI carries an additional 48 hours in county jail.
  • A minimum nine-month DUI school rather than the three-month program that applies to a first DUI without a chemical test refusal.
  • A second DUI within ten years carries an additional 96 hours in county jail.
  • A third DUI within ten years carries an additional ten days in county jail,
  • A fourth or subsequent DUI offense within ten years carries an additional 18 days in county jail.

What are the Defenses Against a Chemical Test Refusal?

Regardless of the implied consent law stipulations, a California criminal defense attorney might use various strategies to challenge allegations of your refusal to submit to a chemical test.

Perhaps we can challenge the lawfulness of the arrest. Maybe we can show that the arresting officer lacked reasonable cause to believe you were driving under the influence, and the purpose for requiring a chemical test was invalidated.

Defenses Against a Chemical Test Refusal

Perhaps we can question the adequacy of the warning about the consequences of refusing a test. Under the law, you must be informed of the specific repercussions of refusal. Maybe we can argue you were not adequately warned and use it as a defense.

Perhaps we can argue you were not physically capable of completing the test due to medical conditions unrelated to alcohol or drug consumption.

Perhaps we can argue that language barriers prevented the police officer's instructions from being clearly understood. Maybe you do not speak English fluently, and an interpreter was not provided. This means we might be able to say that the alleged refusal was due to a lack of comprehension rather than a deliberate refusal to comply.

Perhaps we can argue that you offered to take an alternative test, which the officer refused. The law provides a choice between blood and breath tests (and sometimes urine tests). Maybe we can demonstrate there was no refusal. 

If there are legitimate disputes about how, when, and if the testing was administered and you wrongfully had your license suspended, we can successfully use defense strategies to justify your refusal to submit or show that your license was wrongfully suspended. Contact us for more information. Cron, Israels & Stark is in Los Angeles, CA.

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