Gavin Howe
Implied consent laws exist in all states and come into effect when a driver is tested for blood alcohol content (BAC) and it is found to be over the legal limit, or if the driver refuses to take a chemical test for BAC when requested by a police officer. The specific penalties for violating an implied consent law vary across different jurisdictions, but most state laws say that the DMV can suspend your driving privileges for six to twelve months following a breath or blood test refusal. In some states, refusing to submit to a breath test or other field sobriety test can also lead to a driver's license suspension and an arrest for drunk driving.
| Characteristics | Values |
|---|---|
| Implied consent law | A maxim of state law that deems a person to have consented to a breath or blood test to measure their BAC if arrested for driving under the influence (DUI). |
| Violation | Refusal to provide a breath or blood test following a DUI arrest, or failing a sobriety test. |
| Consequences | Suspension of driving privileges for a minimum of six months to two years, depending on the jurisdiction and prior refusals or convictions. |
| Challenge | The suspension can be challenged at a DMV or implied consent hearing, separate from criminal proceedings. |
| Defenses | Showing that the officer did not have reasonable grounds, the refusal was involuntary, or the proper authority was lacking. |
| State variations | Some states include urine testing, and penalties may differ across states. |
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What You'll Learn
Refusing a breath test
In the United States, all states have 'implied consent laws' that come into effect when you are tested for blood alcohol content (BAC) and it is either over the legal limit or you refuse to take a chemical test when requested by a police officer. This means that by applying for a driver's license, you have consented to breath testing to determine impairment after an arrest.
You can refuse a breath test, but there will always be consequences. The severity of the penalty varies by state, and some states treat test refusal as a criminal penalty, while others treat it as a civil penalty. In some states, refusing a breath test can result in criminal penalties, including jail time. For example, in Ohio, refusing a breath test after arrest violates the state's implied consent law, resulting in an automatic one-year license suspension. In Georgia, refusal to submit to a breath test will result in a minimum suspension period of one year. In California, the license suspension period is six to twelve months.
If you are arrested for a DUI, refusing a breath test will not save you from criminal charges. Even if you do refuse, you can still be prosecuted in a DUI case, and the arresting officer can testify about how you were driving, field sobriety tests, and the smell of alcohol on your breath. Juries can also draw a negative inference from your refusal.
If your state's DMV suspends your driver's license because of an alleged breath test refusal, you can try to challenge the suspension at a DMV license suspension hearing. This is an administrative hearing held at a state's DMV office, and during the hearing, you can try to raise a legal defense to show that law enforcement officers took your license without proper authority.
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Refusing a blood test
In the United States, implied consent laws state that motorists have consented to a breath or blood test to measure their blood alcohol content (BAC) if they are arrested for driving under the influence (DUI). The specific penalties for refusing a breath or blood test vary across different jurisdictions. However, most state laws allow the state's DMV to suspend your driving privileges for six to twelve months following a refusal.
For example, in California, refusing a breath or blood test following a DUI arrest is a violation of the state's implied consent law. The consequences for refusing a test following an arrest include enhanced penalties in addition to the standard DUI penalties and a mandatory driver's license suspension, even if your charge is dropped.
In Georgia, the implied consent law states that if a driver refuses to submit to a blood or urine test, their license or privilege to drive on the highways of the state will be suspended for a minimum of one year.
It's important to note that implied consent laws are often challenged by criminal defense attorneys on the basis that driving is essential for leading a productive, normal life. Additionally, defense attorneys argue double jeopardy, as individuals may face both criminal action for DUI and license suspension. To avoid this situation, some states place license suspension under administrative action by the DMV rather than treating it as a criminal issue.
If your license is suspended due to a refusal, you may be able to challenge the suspension at a DMV license suspension hearing. During this hearing, you can raise a legal defense to show that law enforcement officers took your license without proper authority.
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DUI refusal
In the US, all states have 'implied consent laws' that come into effect when a driver is tested for blood alcohol content (BAC) and it is either over the legal limit of 0.08% or they refuse to take a chemical test when requested by a police officer. When you apply for a driver's license, you agree to comply with requests by law enforcement officers to take chemical tests to determine your BAC. Chemical tests include breath, blood, and urine tests.
If a driver is arrested on suspicion of DUI, they must be informed of their testing options, and they will be given the option of taking either a breath or blood test. If they refuse to take a test, this will result in criminal and administrative penalties, including mandatory jail time and a year-long driver's license suspension. However, it is important to note that what constitutes a test refusal is not always clear-cut, and in some cases, police may incorrectly claim that a driver refused testing. In these cases, it is critical to be represented by an experienced DUI attorney.
The specific penalties for violating an implied consent law vary across different jurisdictions. For example, in California, refusing to provide a breath or blood test following a DUI arrest amounts to a violation of the state's implied consent law, and the driver's license can be suspended for six to twelve months. In Georgia, drivers who refuse to submit to blood or urine testing will have their licenses suspended for a minimum period of one year, and the refusal can be offered as evidence against them at trial.
It is worth noting that DUI refusal must be taken very seriously to avoid serious penalties. If a driver refuses a secondary chemical test after being charged with a DUI offense, they may face consequences such as a one-year license revocation, an adverse inference of intoxication during the criminal trial, and more difficulty defending the criminal charge. To protect their rights, individuals must act quickly, as there is a 30-day time period from the date of their arrest to request a DUI Refusal Hearing. If a request is not made within this period, the court will automatically find that the individual refused the test and notify the DMV.
There are a few ways to challenge a DUI refusal. One strategy is to show that there were no reasonable grounds to believe a DUI offense was committed, which involves examining all the facts and circumstances surrounding the officer's interaction with the driver. Another approach is to prove that the officer failed to provide the required written and verbal warnings, as state law requires that officers verbally read and physically hand the driver a copy of the Implied Consent Statement. Additionally, a DUI refusal is only valid if the officer gave the driver 15 minutes after the first refusal to change their mind. Demonstrating that this opportunity was not provided can help overturn a DUI refusal finding.
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Challenging the suspension
Challenging a driver's license suspension requires an attorney who specializes in the state's Implied Consent Law. The specific procedures police must follow for a valid license suspension under the Implied Consent Law vary from state to state. For example, in Oregon, drivers must request a hearing within 10 days of their arrest, or their suspension will automatically go into effect on the 30th day following their arrest.
A DMV license suspension hearing is an administrative hearing held at a state’s DMV office. During the hearing, you can try and raise a legal defense to show that law enforcement officers took your license without proper authority. You will likely regain your license if you can show that you did not violate your state’s implied consent law. Note that your criminal case for a DUI offense is entirely separate from a DMV case. Even if your criminal charges get reduced or dismissed, your driver’s license will remain suspended or revoked for having refused a breath or blood test.
Implied consent laws are challenged by most criminal defense attorneys on the basis that in today’s society, every person needs to be able to drive in order to lead a productive, normal life. Defense attorneys also argue double jeopardy: you are subject to criminal action for your DUI as well as license suspension. State officials avoid this situation by placing license suspension under administrative action by the DMV rather than a criminal issue. The reasoning that supports implied consent laws is that driving is a privilege, not a right, and that law enforcement officials must determine if you are a danger to the public.
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Administrative vs criminal proceedings
Implied consent laws exist in all 50 states in the US. These laws state that by driving on a public highway, a person is deemed to have given consent to a chemical test to determine their blood alcohol content (BAC). This includes breath, blood, and urine testing. If a person refuses to submit to a chemical test, their driver's license will be revoked.
The administrative case for implied consent suspension is separate from the criminal charge of driving under the influence (DUI). The implied consent proceedings are considered administrative and not criminal, and they are held in a different court. If a person wins their implied consent hearing, their license suspension is rescinded, but they must still fight DUI charges in criminal court. If a person loses their implied consent hearing, their license will be suspended, and they will have to enroll in ADSAP. In some cases, they may also be required to install an ignition interlock device on their vehicle.
The administrative hearing is held at a state's DMV office, where a person can try to raise a legal defense to show that law enforcement officers took their license without proper authority. The criminal case for a DUI offense is entirely separate from the DMV case. Even if the criminal charges are reduced or dismissed, the license will remain suspended or revoked for refusing a breath or blood test.
DUI lawyers may be able to argue that the police took a person's driver's license without authority, for example, by showing that the person was willing to take an evidentiary breath or blood test. Defense attorneys also argue that implied consent laws constitute double jeopardy, as a person is subject to criminal action for DUI as well as license suspension. However, state officials and courts have avoided this interpretation by placing license suspension under administrative action by the DMV, rather than treating it as a criminal issue. The reasoning behind this is that driving is a privilege, not a right, and that law enforcement must determine if a person is a danger to the public.
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Frequently asked questions
Implied consent law is a maxim of state law that deems that, by driving, you have consented to a breath test or blood test to measure your BAC if the police properly arrest you for driving under the influence (DUI/DWI).
Yes, your license can be suspended if you refuse to take a chemical test, even if you are sober. The suspension period can range from one year for a first offense to 18 months or more for subsequent refusals.
If your license is suspended, you should consult an experienced attorney, as you may have limited options for appeal. In some states, you only have ten days to challenge the suspension, while in others, you have 14 days to submit an appeal and request an implied consent hearing.
