Implied consent means that someone gives his or her permission for something not through express language, but through implicit circumstances. Someone’s actions or the facts of the situation can imply one’s consent, rather than the person giving consent expressly. In terms of California’s driving under the influence (DUI) laws, implied consent refers to a driver’s agreement to tests to determine blood alcohol concentration.
It is against the law in the state of California to operate a motor vehicle with a blood alcohol concentration (BAC) level at or above 0.08%. This limit drops to 0.02% for drivers under the age of 21. DUI offenses in California come with harsher penalties and consequences than most other states. A first offense can lead to $2,000 or more in fines and assessments, two days in jail, driver’s license suspension, and mandatory enrollment in a three-month alcohol education class. Three or more DUI offenses in 10 years can lead to up to 16 months in prison, $18,000 in fines, and a 30-month treatment program.
In California, law enforcement officers must have probable cause to conduct a traffic stop for alleged DUI. For example, they must pull the driver over for something such as speeding, red-light running, unsafe lane changing, or drifting between lanes. Without probable cause, an officer may not have the right to pull you over or charge you with a DUI. In most cases, an officer will conduct the initial stop for a broken roadway rule, and then order DUI tests upon noticing red flags for drug or alcohol intoxication, such as red eyes, slurred speech, or the smell of alcohol.
Driving under the influence tests can involve field sobriety tests, chemical tests, breathalyzers, interviews, and analyses of urine or blood. DUI tests are not always accurate. Field sobriety tests are especially unreliable – so much so that drivers now have the legal right to refuse to take a field sobriety test during a traffic stop. They may request breathalyzers or chemical tests instead. Drivers in California do not, however, have the right to refuse all DUI testing without facing the consequences.
In California (as in most states), when a driver signs a driver’s license application, it seals the driver’s approval to comply with requests by law enforcement officers during DUI traffic stops. Signing the documents gives the driver’s implied consent to chemical DUI testing. It does not matter whether the driver knew about giving his or her consent. Every licensed driver in the state of California has agreed to cooperate with chemical BAC testing – or else suffer the criminal consequences.
If you have a driver’s license in California, you lawfully must comply with chemical testing during a DUI traffic stop. The officer may administer a breath test at the scene, but may only test blood or urine at a law enforcement office or medical facility. Refusing a chemical test during a DUI is a violation of California law. While you have the right to say no to chemical tests during a traffic stop, this could result in automatic penalties. Penalties include automatic suspension of your driver’s license for one year. If you later receive a DUI conviction, the courts may enhance your penalty for refusing the test. Enhancements can include six additional months of alcohol education courses and longer license suspension.
Refusing a chemical test does not necessarily safeguard you from a DUI conviction. Police may still arrest you based on DUI per se, or the implication that you are guilty because you refused to take the test. Although police officer will not have the results of a chemical test to use as evidence against you during a DUI trial, the very fact that you refused the test could serve as evidence. Other evidence against you may include erratic driving, police camera footage of the traffic stop, and the arresting officer’s record of what happened. Speak to a local DUI defense attorney for counsel on implied consent and whether or not you should refuse testing.