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A common question that often comes up in DUI cases is what exactly the “implied consent” laws are and what do they have to do with driving under the influence. Typically, issues involving implied consent come up when dealing with DUI refusal allegations.
In order to prove that a driver was operating a motor vehicle while under the influence of drugs or alcohol, a prosecutor must be able to show that the driver was, in fact, impaired. Typically this is done by showing that the driver’s blood alcohol content was above the legal limit (0.08 percent) or by showing that the driver’s blood tested positive for the presence of an intoxicating substance. Both of these rely on a breath or blood sample provided by the driver. Because law enforcement officers simply cannot obtain a warrant for a breath or blood sample for every suspected DUI driver that is arrested, it would seem that a driver could avoid a DUI by simply refusing an officer’s request for a breath or blood sample. However, this is not the case and refusing to take a chemical test will still result in criminal charges for DUI with enhanced penalties as well as a longer driver’s license suspension. The ability to charge a driver who refuses to submit to testing is derived from the implied consent laws.
In California, the legislature has stated that any driver on the road has given their implied consent to submit to chemical testing if lawfully arrested on suspicion of driving under the influence. This means that the act of driving is considered consent to chemical testing if lawfully arrested for DUI and thus any subsequent refusal would be an unlawful act in and of itself.
This means that a driver who refuses testing can still be charged with driving under the influence in violation of California Vehicle Code Section 23152(a). The driver will also be charged with an additional refusal allegation. This refusal allegation triggers an automatic minimum 48 hours in jail upon conviction and can lead to other enhanced DUI penalties, including a longer drug and alcohol education program, required community service or community labor hours and more expensive fines. In addition, the DMV will issue a yearlong administrative license suspension for drivers who refuse to submit to chemical testing. Unlike other driver’s license suspensions, a driver would not be eligible to receive a restricted driver’s license during the year suspension period.
The recent United States Supreme Court decision in McNeely v. Missouri held that in some cases, law enforcement must obtain a warrant before taking a forced blood sample from a suspected DUI driver. This has led many legal experts to question how this holding would fit in with implied consent laws. So far, the California Supreme Court has yet to weigh in, however a recent California Court of Appeals decision has held that the state’s implied consent laws remain valid after McNeely and that forced blood draws conducted without a warrant may be permissible under certain circumstances as a result of the driver’s implied consent to chemical testing.