What Is Implied Consent?

California Vehicle Code 23612(a)(1)(A) provides 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..." The statement is part of California's implied consent law concerning DUI matters. What "implied consent" means is that a person has never explicitly given their permission – verbal or otherwise – to be subject to a chemical test, but their agreement to participate is inferred because they operated a vehicle in the state.

The law applies only after a person has been lawfully arrested on suspicion of drinking and driving. The driver may refuse the chemical test, but they may suffer certain consequences.

Roadside Breath Tests and Evidentiary Tests

If an officer pulls someone over and suspects the driver is under the influence of alcohol, they may subject them to a series of tests, referred to as field sobriety tests (FST). The purpose of the assessments is to establish probable cause for the officer to arrest the driver for DUI.

A variety of FSTs can be administered, including a preliminary alcohol screening (PAS). As with any other field sobriety test, a driver can refuse to participate in the PAS and face no legal penalties. That's because the roadside breath test is not covered under the implied consent law.

Now, if the officer has reason to believe the driver was intoxicated, they can lawfully arrest the person. After the arrest is made, the officer can then request that the driver submit to an evidentiary blood or breath test.

Just as with the PAS, the driver can refuse to take the evidentiary test. However, in this circumstance, they can be penalized for their refusal. That is because the officer has made a lawful arrest, and the driver is deemed to have given their consent to be subject to a chemical test.

Before the officer administers a chemical test, they must advise the driver that:

  • The driver can choose whether they are subject to a blood or breath test,
  • Penalties may be assessed for a refusal, and
  • The driver does not have the right to an attorney before being subject to the test or deciding which to take

The Penalties for Refusing a Chemical Test

Because a driver has given implied consent to be subject to a chemical test, if they refuse, they could face several consequences. Refusing a breath or urine test can result in a fine and mandatory imprisonment if convicted of DUI.

The criminal refusal penalties enumerated under the implied consent law apply only when the driver has been asked to submit to a breath test. In 2016, in Birchfield v. North Dakota, the U.S. Supreme Court decided that law enforcement officials need warrants before administering blood tests on drivers suspected of DUI because blood tests are considered more invasive then breath tests. Taking a person's blood without legal orders to do so may be an invasion of privacy. The Court stated that a separate criminal charge and penalties cannot be imposed upon a driver who refuses to submit to a blood test.

Thus, in California, a driver who refuses a blood test (as well as a breath or urine test) may face only the following administrative penalties:

  • First offense: 1-year driver's license suspension
  • Second offense (within 10 years of a prior violation): 2-year driver's license suspension
  • Third or subsequent offense (within 10 years of a prior violation): 3-year driver's license suspension

Developing a Defense Against Charges

California's implied consent law applies only after an officer has made a lawful DUI arrest. If they did not have probable cause to make the initial stop or to take the driver into custody, that may be grounds to have evidence collected, including the results of a chemical test, thrown out at court.

If you were charged with a DUI in Bakersfield, reach out to Koenig Law Office as soon as possible. We'll examine every detail of your circumstances to develop a defense tailored for you.

Schedule your free initial case review by calling us at (661) 338-5353 or submitting an online contact form today.

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