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What’s Implied Consent, and How Does It Relate to a DUI?


Generally speaking, implied consent means that permission wasn't directly given for some action to take place, but it was inferred because of certain behaviors engaged in by the person giving the "approval." In terms of driving under the influence (DUI), implied consent refers to a driver permitting law enforcement officials to subject them to a DUI chemical test even though they never explicitly said such could take place.

California has a specific law (California Vehicle Code 23612) concerning implied consent. It defines what this principle is, when it can be applied, and what consequences can arise when it is "revoked" by the driver. In this blog, we will elaborate on all of these topics and discuss your options if you were accused of refusing a chemical test.

Implied Consent in California

California Vehicle Code 23612 provides that if a person drives while under the influence of alcohol and/or drugs, they have given implied consent to be subject to a chemical test.

Specifically, the law states that:

  • Anyone who drives a motor vehicle
  • Is deemed to have given consent
  • To participate in a blood or breath test
  • To determine the amount of drugs and/or alcohol in their system

The law applies to every driver in this state (including minors) but is triggered only when that person has been lawfully arrested for DUI. Thus, a police officer can't direct you to take a chemical test because you ran a red light. However, if an officer pulled you over because you ran a red light and they had reasonable cause to believe that you were under the influence and probable cause to arrest you, they can have you submit to either a breath or blood test.

The Officers Duty During Chemical Testing Procedures

Even though you have given your implied consent to be subject to a DUI chemical test, that doesn't mean you'll be whisked off to an office immediately and ordered to blow into a breath test machine or allow an authorized person to conduct a blood draw. The law enumerates the officer's duties before they direct you to testing.

Specifically, they must tell you that failing to submit to or complete either a breath or urine test will subject you to additional fines and a mandatory term of imprisonment if you are later convicted of driving under the influence (note that these enhanced penalties do not apply if you fail to complete a blood test). Also, the officer must let you know that if you fail to complete a blood, breath, or urine test, you will be subject to administrative penalties. Administrative penalties involve driver's license suspension. They are imposed by the Department of Motor Vehicles, as opposed to a criminal court.

"Failing to complete" essentially means refusing to be subject to a chemical test.

And if you refuse a chemical test, your driver's license could be affected as follows:

  • First refusal: 1 year-suspension
  • Second refusal within 10 years of a previous violation: 2 year-suspension
  • Third or subsequent refusal within 10 years of a previous violation: 3-year revocation

At the time of your DUI arrest, the police officer will issue a notice of suspension or revocation. This slip allows you to maintain your driving privileges for 30 days after it was issued. At the end of those 30 days, your driver's license becomes invalid, and you can no longer legally drive. Note that the suspension the DMV places on your driving privileges occurs even before you've gone to trial for the alleged drunk driving offense.

You can contest the administrative suspension of your driver's license. To do this, you must request a hearing with the DMV. You must do this within 10 days of receiving your notice of suspension or revocation. The DMV hearing is concerned only with your driving privileges; it is not the forum for defending against your DUI charge.

Taking a Blood, Breath, or Urine Test

California's implied consent law states that you can choose whether you are subject to a blood or breath test, and the officer must let you know that it is your choice.

If the test you have chosen is unavailable, you must take the other one. If both the blood and breath tests are unavailable, you will be directed to take a urine test. Also, if you choose to take a breath test, but the officer has reasonable cause to believe that you were driving under the influence of drugs, they may have you subjected to a blood test as well.

The Chemical Test Is Different From the Preliminary Breath Test

During your initial DUI stop, the officer might have subjected you to a roadside breath test. This is called a preliminary alcohol screening (PAS). It is not the same as the breath test you may be directed to take if you are lawfully arrested for drunk driving. Even if you take the PAS, you must also take either the breath test at the station or the blood test.

You are not required to participate in the PAS. The officer must let you know that you have the right to refuse it.

It's important that your rights are protected at every stage of your DUI case, including the initial stages involving implied consent and chemical testing. If anything was amiss during your arrest, you may have grounds to suppress evidence and seek a favorable outcome in your case.

Attorney Jacqueline Goodman of The Law Office of Jacqueline Goodman provides skilled legal representation for DMV hearings and DUI criminal cases in Orange County. For the experienced counsel you need, call (714) 266-3945 or submit an online contact form today.

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