California “implied consent” law is strictly defined yet complicated. In other areas of law, we normally hear the term “consent” as something that is expressed, not implied.
However, California’s implied consent law is an entirely different matter. In California, “implied consent” refers to the requirement for any driver operating a vehicle to submit to a blood or breath test. Here is what you need to know about California’s implied consent law.
What Is California Implied Consent Law?
Under California Vehicle Code 23612,
“[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, if lawfully arrested.”
According to this law, every driver in California has implicitly agreed to have given their consent to a blood or breath test in the event they are lawfully arrested for suspicion of driving under the influence. Importantly, this rule is applied to all motorists driving in California, regardless of whether they are a California resident or non-resident holding an out-of-state license.
California Implied Consent Law and Chemical Testing
When motorists are pulled over by law enforcement officers, it can be expected that some form of chemical testing may be requested. Chemical tests are used to determine sobriety by using a person’s Blood Alcohol Concentration (BAC). This can be conducted in several ways such as through a blood sample, urine, or most commonly, a breath analysis.
When Can Law Enforcement Request a Blood or Breath Test?
Due to California’s implied consent law, law enforcement may request a driver to submit to a blood or breath test rather freely. However, this is true under one condition. A request can always be requested if an officer has probable cause in believing the driver has a DUI suspicion. For example, law enforcement may requests drivers on signs contributing to a suspicion of driving under the influence such as;
- driving slower or faster than the speed limit
- erratic driving
- abrupt stops for no apparent reason
- failure to obey traffic laws (stoplights, signs, illegal turns)
- car accidents
In California, drivers are usually given the option to choose between a blood or breath test. Urine tests are sometimes requested when no other options are available. In other cases, a urine test might be used for drivers unable to conduct a blood test due to health conditions.
Can a Driver Refuse a Blood or Breath Test in California?
You may wonder whether you can refuse to take a breathalyzer test in California. In short, a driver may refuse to take a blood or breath test in, but there are a few catches to this. California’s “implied consent law” limits blood or breath tests are to be requested following an applicable, lawful arrest. Therefore, a refusal to a blood or breath test before a lawful arrest is permitted, but depending on the circumstances there can be some consequences to that refusal.
California Implied Consent Refusal Pre-Arrest Testing
California’s implied consent law doesn’t require motorists to conduct a test before a lawful arrest. Prior to a lawful arrest, law enforcement officers are required to establish probable cause for an arrest. During pre-arrest, motorists are often requested to take a voluntary preliminary alcohol screening (PAS) test. A PAS test is conducted by using a breathalyzer, a handheld device given to motorists to collect a breath sample. The test provides law enforcement officers with an indication of a motorist’s sobriety by giving a quick estimate of the BAC level.
California Implied Consent Refusal Post-Arrest Testing
On the other hand, if a driver refuses a blood or breath test after an applicable, lawful arrest, then California’s implied consent law levies certain consequences. These consequences can be twofold:
- The driver may lose their driver’s license; and
- The driver may face enhanced penalties for a subsequent conviction, such as additional fines, jail time, or rehabilitation
In the event that a driver refuses to take a test, it is mandatory that the arresting officer explains these consequences for refusing a test to the driver.
Are There Any Exceptions to the Refusal of Implied Consent in California?
Mainly there is an exception that pertains to two groups of drivers who may not refuse a PAS test, and are required by law to take a blood chemical test.
Drivers who are under the age of 21
Like all drivers, underage drivers are subjected to a standard DUI charge with a blood alcohol of 0.8% or higher. However, drivers who are under age 21 are also subject to be charged for a DUI under two additional sections:
- California’s zero-tolerance law (Vehicle Code 23136 VC)
- Under California’s zero-tolerance law, it is illegal for drivers under the age of 21 to have a blood-alcohol concentration of 0.01 percent or greater. In other words, it is illegal to have any alcohol in their blood at all.
- BAC level of .05 or higher (Vehicle Code 23140 VC)
- It is illegal for drivers in California who are under the age of 21 to have a BAC of 0.5 percent or higher. This results in a much more severe penalty in court.
Drivers who are on DUI probation
Similar to drivers under the age of 21, there is also a zero-tolerance policy for motorists who are currently under probation for a DUI. Under Vehicle Code 23154(a), it is illegal for drivers on DUI probation to have any traces of alcohol in their blood. Additionally, they may not refuse to take the PAS test. The penalty for refusing a PAS test during a DUI probation may result in severe consequences such as having their license suspended for up to 3 years.
What Happens if a Driver Refuses Blood Alcohol Testing in California?
Drivers who refuse to submit a DUI breath test after being lawfully arrested for a DUI are likely faced with penalties for a chemical test refusal. Two consequences following a chemical test refusal in California are as follows;
- Increased penalties in addition to California DUI penalties
- A mandatory driver’s license suspension will happen regardless of the outcome of the DUI case
The reasoning behind this draws back to California implied consent law. In the eyes of the law, driving is a right rather than a privilege. Therefore, a chemical test refusal should constitute that privilege being taken away.
As noted above, California’s implied consent law levies certain consequences for refusing to submit to a required blood or breath test. Generally, these consequences can mean losing one’s driver’s license and/or facing enhanced penalties. What do those enhanced penalties look like? Where a driver refuses to submit to a required blood or breath test and is later convicted of a DUI, the California penal code lists the following enhanced penalties (including for subsequent convictions reached within ten years):
- First DUI: an additional 48 hours in county jail
- Second DUI: an additional 96 hours in county jail
- Third DUI: an additional 10 days in county jail
- Additional DUIs: an additional 18 days in county jail
Available Defenses for DUI Test Refusal Charge
Lawful arrests are the key component in requesting or conducting any DUI test. Therefore, a common defense against DUI test refusal charges can be brought up if an arrest was not “lawful”. For instance, the enforcement officer may not have sufficient reason for a DUI stop or arrest.
In those cases, implied consent cannot be applied to a motorist. Consequently, this type of defense may possibly dismiss the DUI case.
Contact Pride Legal
If you or a loved one has been involved in an DUI, we invite you to contact us at Pride Legal for legal counseling or any further questions. To protect your rights, hire someone who understands them.
