What Is Implied Consent?
The term implied consent refers to a law related to chemical tests for blood alcohol and drug levels. At its most basic, implied consent means that if you operate a motor vehicle on the roads, you are automatically implying consent for a blood alcohol test if a law enforcement officer arrests you for a potential DUI.
Every state has such laws, but the penalties for refusing the test in cases where implied consent applies may be more severe in California than in the home states of some out-of-state defendants. For example, many states only levy administrative penalties, such as loss of licensure or fees, for this infraction. Some states, including California, potentially levy criminal penalties in these instances, depending on the outcome of DUI charges.
If you’re facing DUI charges in California, it’s important to understand the details of your case as well as how to protect your rights. This is something a criminal defense attorney experienced in DUI cases can help with.
What Happens If You Don’t Submit to the Chemical Test?
Failure to submit to the chemical test when you are in a situation where implied consent is relevant can result in suspension of your license whether or not you are convicted of a DUI. On the first offense of refusing a BAC or other chemical test in such a situation, you can lose your license for up to one year. On a second offense, license suspension can be up to two years. A third offense within a 10-year period can result in loss of license for up to three years.
Refusing the BAC or chemical test also impacts the potential outcome of your DUI case. Often, individuals who are convicted on DUI charges may have options such as alternative sentencing or reduced sentencing, depending on the details of the case. However, if you refuse a chemical test in an implied consent situation, you may face mandatory sentencing following a conviction.
What Must the Officer Do Before the Chemical Test?
Officers must perform some specific duties before they require that you submit to a chemical test for alcohol or drugs. If you can demonstrate that the officer did not perform these duties as required by law, you may be able to argue that the chemical test evidence was not legally obtained and, thus, can’t be used in your case.
The officer must inform you clearly of a number of things, including the fact that refusing the test could aggravate the charges against you, increasing penalties if you are convicted. They must also inform you that you can lose your license for refusing the test and that you have a choice about which type of test you submit to.
Unfortunately, you don’t have a right to consult with your attorney before you make a decision about submitting to the test or which test to choose. The officer must also inform you of this.
One Exception to the Implied Consent Law
Implied consent doesn’t cover all requests by law enforcement officers for BAC testing. For implied consent to be relevant, the officer must have decided, based on evidence or behavior he or she witnessed, that an arrest for DUI is warranted. It is during the arrest process that you are required to submit to the chemical test.
However, if an officer is conducting what is known as a pre-arrest screening to determine if there is probable cause for an arrest, they may ask you to complete several actions. This can include field sobriety tests, such as completing several motions or walking a straight line. It might also include a breath test, which involves blowing into a hand-held device designed to measure BAC content in your breath.
You may be able to refuse this test without any impact to your license, as implied consent isn’t relevant.
Can You Defend Against a High Blood Alcohol Content?
Yes, there are numerous ways to challenge the results of a chemical test. A criminal defense attorney can review your case and help you understand your options, which might include:
- Pointing out errors in how the test was administered. If the test is not handled correctly, it calls into question the results.
- Getting the evidence thrown out. If law enforcement officers and others don’t follow some exact rules, chemical test evidence can’t be used to prosecute you.
- Presence of medical conditions or other mitigating factors that could lead to false positives on chemical drug or alcohol tests.
You might also have an option for defending yourself against claims that you refused to take a chemical test. If you can demonstrate that implied consent didn’t apply because there was no reason to suspect you of DUI or probable cause to arrest you, for example, you may be able to keep your license.
Work With a DUI Criminal Defense Attorney to Protect Your Rights
When you are charged with DUI or refuse to take a chemical test in covered scenarios, two different processes kick off. The first is administrative and is handled by the DMV. The officer takes your license and provides you with a temporary one to allow time for the DMV to conduct an investigation into the case. The DMV ultimately decides whether to uphold the license suspension.The other process relates to the criminal justice system. Here is where you will face DUI and related charges, defend yourself against them, and face any sentencing if you are convicted. An experienced criminal law attorney can help with both of these processes. Contact the Law Offices of Jerry Nicholson today to find out how we can work on your behalf to fight for your rights. Give us a call at 562-205-8499.