Every year, many California residents get arrested and charged with drugged or drunk-driving based on the chemical test results. Taking this fact into account, most motorists believe that when they refuse to take the tests, they won’t be arrested. However, the decision to refuse a test may result in severe consequences under the implied consent law. For one, you can be charged with a chemical test refusal offense, which attracts enhanced penalties, license suspension, and fines.
Note that you have the right to refuse a chemical test. However, if you decide to do so, make sure you have access to legal representation from an experienced attorney in case you get charged. For Orange County residents, contact the Orange County DUI Defense Lawyer as soon as you get charged. Our attorneys will use the knowledge and experience of the implied consent and other DUI laws to help you fight your case. In this article, we focus on what the implied consent law requires every driver in California.
Defining Implied Consent Law
California implied consent laws make it compulsory for any motorist in California, who is legally arrested for drunk-driving to take a breath or blood test (chemical tests). For an arrest to be legal, the police officer who pulls you over should have probable cause to believe you have been driving while intoxicated with drugs or alcohol. The purpose of submitting to a breath or blood test is so the arresting officer can determine your blood alcohol content (BAC).
Chemical tests are meant to measure your blood to alcohol ratio. They work by calculating the alcohol amount found in your bloodstream (BAC). Like many other states, California statutes prohibit you from driving a motor vehicle when your BAC is at .08% or more. Therefore, when chemical tests indicate that your blood alcohol concentration is above the .08% limit, you will be arrested for DUI. Similarly, if you decline to do the test, California’s implied consent law also provides that you get charged with DUI.
Generally, California law allows you to select between a breath and blood test. However, if neither of these tests is available, you will have to submit to a urine test. Also, certain health conditions may make it impossible for one to do a breath or blood test. For instance, people who take anticoagulants for a heart condition cannot be asked to do a DUI blood test. The same applies to those individuals who have hemophilia. However, they must instead do a urine test.
Also, note that if you opt to perform one test, an officer may request you also to do the other. For instance, if you chose a breath test, the officer may need you to take a blood test and vice versa. This happens if the officer has reasonable cause to believe you were driving while intoxicated, and he/she trusts that the alternative test will reveal the proof of your intoxication. The officer will then include in his/her report the facts upon which his/her beliefs are based. If you violate the implied consent law (that is, refusing to do a breath, blood, or urine testing, you will be subjected to various consequences. They include:
- Enhanced penalties to add on the standard California drunk-driving penalties
- A mandatory suspension of a driver’s license. The suspension occurs irrespective of the court’s ruling on your DUI case
The law requires an arresting officer to explain to you the repercussions of declining to take a test. He needs to tell you that you will be subjected to a fine, your license will be suspended, and you will face jail time in case of a conviction. Also, the officer has to let you know you do not have the right to a lawyer before submitting to the test. He/she also needs to let you know that refusing to take the test can be used against you in a court of law.
Pre-Arrest Preliminary Alcohol Screening (PAS) Breath Tests
After you get stopped for suspicions of driving under the influence, but before you are arrested, you may be required to undergo a hand-held PAS breath testing. Basically, a PAS test is a breath test taken by the roadside. It is considered as one of the many field sobriety tests that you may be subjected to, like moving your finger close to your nose. The work of these tests is simply to help the police decide whether to arrest you for DUI or not.
You will not face any penalties for declining to undergo a preliminary alcohol screening breath testing unless you are either:
- Below twenty-one years old and have been suspected of drunk-driving
- On a DUI probation due to a past drunk-driving conviction
Note that provided you are not an underage driver or are not on probation; refusing to submit to a PAS breath test might not be admissible in court. However, note that if you agree to the test, the test results can be admitted into evidence to help in convicting you of DUI.
The Penalties for Declining to Breath Testing After an Arrest
Basically, there are two possible consequences you can face if you refuse to undergo breath testing, thus breaking the implied consent law. The punishments include:
- Losing your privileges to drive for a given period. If you are a first-time DUI offender. Your driver’s license will be suspended for one year. For a second DUI offense, the driver’s license is suspended for two years. Third-time DUI offenders will face a three-year license suspension. Fourth or subsequent DUI offenders will also face license suspension for three years.
- Facing increased penalties to add on the usual DUI punishments. The enhanced penalties you could face include:
- If you are a first-time DUI offender, you will face an additional forty-eight hours in jail. You will also face an enhanced punishment of at least nine months of a DUI School Program instead of three months
- For second DUI offenders within ten years, they will face an additional ninety-six hours in jail
- Third-time offenders will be subjected to an additional ten days in jail
- Fourth and subsequent DUI offenders will face an additional eighteen days in jail
Note that if you lose your license for refusing to submit to chemical tests, you won’t be able to obtain a restricted license all through the suspension period. This is a terrible outcome that you can avoid by agreeing to the test. This is because even if you had agreed to take the test and your BAC was more than .08%, you would have been able to apply for a restricted license. Therefore, you should remember how costly it can be to decline to submit to chemical tests.
Conditions that Can Make an Officer Request you to Submit to Blood Testing
We have three situations in which an officer can require you to do a DUI blood test. The situations are when there’s:
- Suspicion of driving under the influence of drugs. An officer may require you to do a blood test in case he/she believes that the test will reveal the presence of drugs in your blood system. Reasonable belief can be established through your statements, physical proof of use of drugs, or objective signs of being under the influence of drugs
- Suspicion of a felony DUI- The officers might use a forced draw of your blood to conduct a drunk-driving chemical test. This happens if they suspect you of committing felony DUI, and they can’t obtain a warrant quickly enough. A DUI is considered a felony offense when you have more than three convictions of drunk-driving or wet reckless in the past ten years. It is also a felony when it causes an injury, and when you have a minimum of one previous felony drunk-driving conviction.
- A warrant out to conduct the test- An officer can ask you to undergo a DUI blood testing when he or she has a valid warrant for the same. A valid warrant is obtained from a judge. It provides lawful authorization for chemical testing in this context.
What Happens If Medical Care is Needed Before Administration of Tests?
There are cases where you may be lawfully arrested for suspicions of DUI. However, since you require urgent medical treatment, you are first taken to the hospital where certain chemical tests cannot be administered. Or, you may be taken in a health facility where particular samples of the breath, blood, or urine cannot be obtained. In this case, you have the right to choose from the tests available at that facility. Here, the officer will advise you of what tests are available at the hospital. He/she will also inform you that your choices are limited to the available tests.
Chemical Testing Process in the Context of DUI
Understanding the dragged or drunk driving chemical testing procedure as provided under the California law is critical. This is because it helps your attorney to find every possible means to challenge the charges against you.
Parties that Can Administer DUI Chemical Tests
Under Vehicle Code 23158, only the persons listed below are permitted to draw blood samples for determining your BAC:
- Registered nurses
- Licensed surgeons and physicians
- Licensed vocational nurses
- People that have been issued with a certified phlebotomy technician certificate as per section 1246 of the Business & Professions Code
- Duly licensed clinical laboratory scientists or clinical laboratory bio analysts
- Certified paramedics upon being requested by a law enforcement officer
- Unlicensed laboratory workers regulated as per Sections 1246, 1242.5, and 1242 of the Business & Professions Code
This limitation doesn’t apply to breath tests. An emergency requirement for paramedic services only applies if a police officer requests for the paramedic to draw the blood sample to determine BAC. Certified paramedics are not supposed to withdraw a blood sample for testing BAC unless they are authorized by their employers to do the same.
Additional Tests on Request
You can, at your expense, choose any of the persons we listed above to administer your DUI blood test. This includes any other tests a police officer will require to be conducted. After the test administration, the results of the test will be available to you or your lawyer.
Available Defenses to Charges of a DUI Test Refusal
Even though the negative effect of refusing to take a blood or breath test can be severe, our attorneys can help you beat these charges. There are quite several defenses the attorneys can argue on your behalf if you are facing charges of drunk-driving test refusal. They include:
- You arrest was unlawful
This is one of the common legal defenses that apply to test refusal charges. If your attorney can substantiate that the arresting officer committed errors while arresting you, you cannot be convicted. This is because those mistakes would render the arrest illegal. For instance, an arrest isn’t lawful in case the arresting officer didn’t have any probable cause for him/her to pull you over or arrest you. And if you were not legally arrested, then it means you did not give implied consent to chemical testing. This legal defense may work to have your entire drunk-driving case dismissed.
- The arresting officer didn’t advise you properly on the consequences of a test refusal
As we said earlier, an officer has to provide you with a warning on your right to select between a breath and blood test. The admonition has to be clear and concise. The officer also has to inform you of the possible penalties you will face if you refuse to take the test. If the warning was ambiguous or confusing, then the implied consent law cannot be invoked.
If an officer arrests you for suspected drunk-driving, then it is more likely that the implied consent law played a role. A skilled DUI defense lawyer can review all the proof in your case and contest the findings of the officer.
- You did not refuse chemical testing
If you did not decline to take a chemical test, you could use this point as a legal defense. However, the threshold for finding a refusal is very low. An arresting officer doesn’t need to allow you a second chance to take the test. Also, failure to generate adequate air when blowing into the breathalyzer may constitute a refusal.
- Lack of capacity
In case you were incapable of consenting or providing an adequate breath or blood sample for testing, then you can use this defense, under given circumstances. The reason for your incapability to submit to the test has to be outside your control. Therefore, being intoxicated with drugs or alcohol is not an excuse for failing to consent. But, an injury on the head or a health condition, for example, epilepsy, can give a valid defense.
The Implied Consent Law Applies to Every Driver in California
Note that implied consent laws apply to all drivers in California State. This includes California residents who have a valid California driver’s license and non-California residents who have an out-of-California license.
The moment a new motorist first receives his/her license to drive in California, they acknowledge that they understand and will obey the implied consent law. Basically, by obtaining a driver’s license, you will have entered a civil agreement with California State. In this agreement, you accept that you will agree to chemical testing and that you surrender your protection against unreasonable seizure and search. In exchange for your promise to agree to chemical testing, you are allowed the privilege to operate a vehicle. If you refuse to do chemical tests, you will have broken your civil agreement and, therefore, violated the implied consent law. Breaking the implied consent law subjects you to severe penalties.
Mostly, motorists do not remember entering into a civil agreement with California State. Others would remember the contract but would forget its requirements. Additionally, most drivers who get arrested for drunk-driving are visitors from other U.S States. Thus, they might not be conversant with California’s strict requirements for DUI chemical testing. Nevertheless, any motorist who operates an automobile in California is governed by the implied consent law. Being ignorant of this law isn’t a legal defense.
Due to this fact and because of the consequences of breaking this law being severe, arresting officers have to advise motorists concerning the requirements of this law expressly. They must also inform the drivers of the potential penalties they would face if they violate the law. In its entirety, the implied consent law recurrently dictates that the police shall advise drivers of what the law requires of them.
For a DUI chemical testing refusal to be used against you, the refusal has to be willful and knowing. By knowing, it means that you have to know that you are declining a chemical test. It also means that you must understand the consequences related to doing so. Additionally, we said that your refusal has to be willful. This means that the officer should be capable of objectively determining that you declined the test. And for you, you should be capable of mentally and physically understanding what the officers are doing.
Most motorists get confused about their rights to have a lawyer present when they are deciding to take DUI chemical tests of their breath or blood. This confusion may be aggravated by the circumstance that two different laws conflict with each other. For several decades, California residents have known that they have a right to legal counsel before they make any statement to the police.
In its turning point case of Miranda vs. Arizona, the Supreme Court of the United States ruled on various requirements. One of them was that police officers seeking to do a custodial interrogation or interview of an arrestee should first advise the arrestee of his/her right to a lawyer. Since the ruling in 1966, the U.S States have established anticipation that arrestees will be informed of their Miranda Rights upon being arrested. This protection is provided to citizens under the Fifth Amendment to the constitution of the U.S. As a result, most motorists incorrectly expect that the provisions of this amendment will automatically protect them.
The implied consent law of California is the exact opposite of the Miranda rule. When obtaining your driver’s license in California, you expressly waive your right to a lawyer before deciding about taking a breath or blood test. As a result, if you are lawfully arrested, you must agree to take a breath or blood test without first speaking with your attorney.
Implied Consent Law Also Applies to Other Areas of Law
For the avoidance of confusion, you need to know that implied consent is a general legal concept. Therefore, it has several other applications apart from drunk-driving arrests. For instance, implied consent also applies in these situations:
- First Aid- most jurisdictions has laws that allow health care experts to use implied consent when treating an individual who is severely injured but incapable of responding.
- Court procedures- in court, both parties must have the right to object to the introduction of an item into evidence. In case either party does not object on time, then they have impliedly surrendered their right of objection.
These implied consent applications vary from one state to the other. Consult with your attorney in case you are wondering whether any of these cases apply to you.
Find a DUI Defense Attorney Near Me
The punishment for violating implied consent laws can be harsh. If it is established that you refused to take chemical tests, your driver’s license may be suspended for at least one year. As bad as this may sound, it is possible to win your case. The DUI defense attorneys from Orange County DUI Defense Lawyer will do what they can to fight and win refusal and administrative per se hearings before the DMV. The law safeguards drivers and protects them against wrongful accusations of refusing to take chemical tests by police officers. At our firm, we know this makes a significant difference during the refusal hearing. Therefore, we are ready to use our experience and knowledge to help you win your case. Contact us now at 714-820-9592 for help.