California’s implied consent law requires drivers to submit to a breath, blood, or urine test after being arrested for a DUI. Before having the test administered, the arresting officer will inform you that refusing a chemical test can result in the administrative suspension or revocation of your driver’s license. The amount of time you can lose your driving privileges for depends on whether you have any previous DUI violations.
Whether you submitted to a chemical test and results indicated you had an elevated blood alcohol content (BAC) or you refused the test and are facing an administrative driver’s license suspension, defenses may be available to challenge your charge or DMV action.
What Is Implied Consent?
Generally, implied consent refers to a driver's implicit permission to be subject to a DUI chemical test. The chemical test may include a blood, breath, or urine analysis, which determines whether the individual had alcohol in their system when operating a motor vehicle.
California’s implied consent law (California Vehicle Code § 23612) applies when a person is lawfully arrested for driving under the influence. Essentially, this means that the police officer had probable cause to believe the individual was operating a motor vehicle while their normal faculties were impaired by alcohol and/or drugs, or they had a BAC of 0.08 or more.
The Officer’s Duties Before Having the Chemical Test Administered
The arresting officer has several duties before directing you to submit to a blood, breath, or alcohol test.
They must inform you that:
- Not taking the breath test can lead to enhanced DUI penalties,
- Refusing to submit to a breath, blood, or urine test can result in the loss of your driver’s license,
- It is your choice which test you will submit to, and
- You are not entitled to consult with legal counsel before deciding whether you will submit to chemical testing and which type of sample you will provide.
The Consequences of Chemical Test Refusal
You are required by law to submit to a DUI chemical test. However, you can still choose to refuse to provide a specimen for analysis. Although you have this choice, it doesn’t come without consequences.
Refusing a blood, breath, or urine test can lead to administrative suspension or revocation of your driver’s license for the following periods:
- First offense: 1 year
- Second offense within 10 years: 2 years
- Third or subsequent offense within 10 years: 3 years
Additionally, refusing a breath or urine test may result in a fine and mandatory incarceration if you are convicted of driving under the influence. These punishments don’t apply to a blood test refusal because the U.S. Supreme Court ruled that it is unconstitutional to impose criminal penalties for such an invasive procedure when law enforcement officials don’t have a warrant for it.
Implied Consent Does Not Apply to Pre-Arrest Breath Screenings
As part of your initial DUI stop, the police officer might direct you to take a breath test on the roadside, referred to as a pre-arrest screening (PAS). They administer the test using a hand-held device you blow into.
The PAS produces an estimate of your BAC. The officer uses the results to establish probable for a DUI arrest. In other words, the PAS analysis gives the officer the evidence they need to justify taking you into custody.
The implied consent law does require you to submit to the PAS. You can refuse it without worrying about the DMV suspending or revoking your driver’s license. However, not taking the roadside breath test will not necessarily help you avoid a DUI arrest. The officer could rely on other evidence to establish probable cause.
Challenging DUI Chemical Test Results
Suppose a blood, breath, or urine test revealed that you had a BAC of 0.08 or more. That doesn’t mean a DUI conviction is certain. Defenses may be raised to challenge the results.
For instance, the analysis may have generated a high BAC because of:
- A medical condition,
- Improper testing procedures followed,
- Mishandling of samples, or
- Residual alcohol in the mouth.
If you refused to take a chemical test, you could argue that your driver’s license should not be suspended or revoked because the officer did not have probable cause to believe that you were under the influence or to arrest you.
Contact Lessem, Newstat & Tooson, LLP
The implied consent law can have various impacts on your DUI case. You may face the loss of your driving privileges and criminal sanctions. A defense attorney can work toward helping you avoid adverse consequences that may arise.
Call our Los Angeles team at (800) 462-7160 or contact us online to learn how we can help build your defense.