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Implied Consent Law in DUI Cases

Posted by Dmitry Gorin | Apr 10, 2024

In the state of California, when you drive a vehicle, you are doing so under the understanding that if an officer arrests you on suspicion of DUI, you are giving your consent to submit to blood or breath tests to verify your blood alcohol content (BAC). 

This principle is known as "implied consent." If you refuse to submit to one of these tests after being arrested for DUI, it can result in additional complications and penalties, not the least of which is suspension of your driver's license. 

Implied Consent Law in California DUI Cases
California’s implied consent law requires arrested DUI motorists to submit to a breath or blood test.

Simply put, California's implied consent law requires any motorist who was lawfully arrested for DUI to submit to a breath or blood test to determine their blood alcohol concentration, including ride-share drivers.

Vehicle Code 23612 VC 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 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.

(C) The testing shall be incidental to a lawful arrest and administered at the direction of a peace officer having reasonable cause to believe the person was driving a motor vehicle in violation of…

Notably, this law only applies to breath or blood tests after a lawful DUI arrest, meaning that drivers can still refuse to take a preliminary alcohol screening (PAS) breath test before they are arrested. 

A driver will receive specific penalties for violating the implied consent law, such as increased punishments in addition to the standard California DUI penalties and
a mandatory driver's license suspension that will occur regardless of the outcome of their DUI case.

If there are legitimate disputes about how/when/if the testing was administered and you wrongfully suspended your license, a skilled defense attorney can employ specific defense strategies to justify your refusal to submit or show your license was wrongfully suspended.

What is Implied Consent?

Implied consent is a legal doctrine that is central to DUI enforcement in most states. Under this principle, by the mere act of driving a motor vehicle, a driver implicitly agrees to submit to chemical tests (blood, breath, or urine) if suspected by police of DUI. 

While some states extend implied consent to traffic stops, California only enforces implied consent if you have been lawfully arrested (Vehicle Code 23612 VC). Thus, if you politely refuse to take a field sobriety test during a traffic stop, you are not violating implied consent; the officer must lawfully arrest you for it to apply.

The law mandates that chemical testing be incidental to a lawful arrest and administered by a peace officer with reasonable cause to believe that the individual was driving under the influence. 

The purpose of these tests is to determine the alcoholic content of the blood or the presence of drugs. Notably, there are some conditions where law enforcement can require a motorist to take a blood test, such as:

  • Suspicion of a felony DUI, when it causes an injury, or they have three or more DUI or wet reckless convictions within the prior ten years, and the defendant has at least one prior felony DUI conviction.
  • Suspicion of driving under the influence of drugs, called “DUID” (Vehicle Code 23152(f) and 23152(g), when the police officer has a clear indication that the test would show the presence of drugs through the driver's statements, symptoms of drug intoxication, or physical evidence of drug use.
  • A warrant for the blood test, which a judge issued for the person to take a chemical blood test.

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

What are the Consequences of a Refusal?

Refusing to submit to a chemical test after a lawful arrest for DUI carries significant consequences. Firstly, refusal results in the administrative suspension of the driver's license by the Department of Motor Vehicles (DMV)—one year for a first offense, two years if there is a prior relevant offense within ten years, and three years for two or more prior offenses within the same timeframe.

Moreover, refusal can lead to additional penalties upon a DUI conviction, including the following:

  • First DUI offense carries an additional 48 hours in county jail and a minimum nine-month DUI school rather than the three-month program for first-time DUIs not involving a refusal.
  • Second DUI offense within ten years carries an additional 96 hours in county jail.
  • Third DUI offense within ten years carries an additional ten days in county jail and
  • Fourth or subsequent DUI offense within ten years carries an additional 18 days in county jail.

It's also important to note that even when the police cite your right to an attorney (i.e., Miranda warning), individuals do not have the right to consult with an attorney before deciding whether to submit to a test or which test to take. 

Since your consent is implied, demanding an attorney first is considered a delay tactic to lessen your BAC results. Furthermore, refusal can be used against you in court.

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

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

What are the Defenses Against Allegations of a Refusal?

Despite the clear stipulations of the implied consent law, a skilled California criminal defense attorney might employ various defenses in response to allegations of your refusal to submit to a chemical test.

Challenge the Lawfulness of the Arrest

One common defense is challenging the lawfulness of the arrest itself. If your attorney can demonstrate that the arresting officer lacked reasonable cause to believe you were driving under the influence, the basis for requiring a chemical test may be invalidated.

California’s Implied Consent Law

Question the Adequacy of the Warning

Another defense revolves around the adequacy of the warning given to the accused about the consequences of refusing a test. The law requires that individuals be informed of the specific repercussions of refusal. If you were not properly warned of the consequences of refusal, it might form the basis of a defense.

Inability to Complete the Test

In some cases, individuals may be physically unable to complete the test due to medical conditions unrelated to alcohol or drug consumption. If your attorney can provide evidence to support that, it could negate the allegation that you refused to comply.

Communication Barriers

In some cases, language barriers may prevent the officer's instructions from being clearly understood. Suppose you do not speak English fluently, and the officer does not provide an interpreter. In that case, your attorney might argue that the alleged refusal was due to a lack of comprehension rather than a deliberate refusal to comply.

Offer to Take Alternative Tests

If you offered to take an alternative test to the one proposed by the officer and this offer was unreasonably refused, this might also serve as a defense. 

The law provides for a choice between blood and breath tests (and urine tests under certain conditions), and a willingness to comply through an alternative means can demonstrate the absence of refusal. Contact our law firm for more information. Eisner Gorin LLP is based in Los Angeles, CA.

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About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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