Implied Consent Law in California
When you choose to drive in the state of California, many laws automatically apply. If you are arrested for DUI (Driving Under the Influence), California’s implied consent laws will come into play. Implied consent is a kind of legal consent which, although not expressed by a person, is inferred from a situation or put onto an individual by law. Although these laws are not stated, they are inferred whenever you are driving a vehicle, and come into play if you are arrested for DUI.
How Do Implied Consent Laws Affect DUI in California?
Under California’s Vehicle Code 23612, any person who drives a motor vehicle in the state has given their consent to chemical testing of their blood or breath for the purpose of determining how much alcohol is present. This law only applies to those who have already been arrested for DUI, not before such an arrest takes place. This means that, if you have not yet been arrested for DUI, you may refuse to take a breath test (otherwise known as a PAS, or preliminary alcohol screening). If you are under age 21 or are already on probation for DUI, however, you may not refuse to take a PAS.
Because of California’s implied consent laws, refusing to take a PAS after a DUI arrest carries its own penalties. In addition to any other penalties you may face, you must pay fines and have your driver’s license suspended for a year, even if you are not convicted of driving under the influence. If you have a prior DUI conviction or have refused a DUI PAS before, you may have your driver’s license suspended for two years.
Blood tests for DUI are handled a bit differently. In the Supreme Court case of Birchfield v. North Dakota, the court found that defendants cannot be penalized for refusing to take a DUI blood test if the police have not obtained a warrant for such a test. The conditions in California in which police may require you to take a blood test are:
Police have a warrant for a blood test. This must be issued by a judge, and gives police the legal authorization to perform a DUI chemical blood test on you.
Police suspect you of committing a felony DUI (which can occur if one of these situations has happened):
- This is your fourth DUI offense in ten years.
- You have a prior felony DUI conviction.
- You have caused an accident in which someone else was injured or killed.
Police suspect you of driving under the influence of drugs. This suspicion must be due to a “clear indication” that your DUI blood test would show the presence of drugs. This could be from:
- Your own statements.
- They have observed symptoms of drug intoxication in you.
- They have physical evidence of drug use.
Who Do California’s Implied Consent Laws Apply To?
California’s implied consent laws apply to anyone who drives in the state. This means that both California residents with a California driver’s license and non-California residents with an out-of-state driver’s license who are driving in the state are subject to California’s implied consent laws.
What Defenses Do I Have for Refusing a DUI Test?
If you refuse to take a DUI test, a good criminal defense attorney can raise one common defense. The lawyer must show that your arrest was not lawful. An example of an unlawful DUI arrest would be if the arresting officer did not have probable cause to stop you for DUI and/or arrest you. If the arrest was not lawful, then you have not given your implied consent to take a breath test. Your entire DUI case could be dismissed.
If you find yourself facing DUI charges or are unsure about the consequences of refusing a blood test, call our law offices today. We can help you to reach the best outcome in your DUI case.