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The Law of Implied Consent … Knowing Your Rights And Obligations After Being Arrested For Driving Under The Influence of Alcohol in California

  • September 1, 2017

    As with many other states, California has an ‘implied consent’ law that requires that any driver who is arrested for suspicion of driving under the influence to submit to a chemical test in order to determine if they have alcohol or drugs in their system. Under this principle of implied consent, the state considers anyone operating a motor vehicle within California’s borders to have given their implicit consent to be tested for drugs or alcohol if requested by an officer. Although you can still refuse to comply and submit to a blood alcohol test, doing so carries with it even stricter penalties. For this reason, it is imperative that everyone understands their rights and obligations when arrested for DUI and also how the law of implied consent will affect your DUI case.

    Lawful Arrest and Implied Consent
    The law of implied consent is applied in any case where an officer lawfully arrests a person for suspicion of driving under the influence. In order for the arrest to be considered lawful, the officer must have probable cause to suspect that you were driving under the influence of drugs or alcohol. This means that if you believe that the officer did not have probable cause to pull you over, you can potentially fight against the DUI charge.

    Nonetheless, refusing to submit to a blood alcohol test means you will automatically be charged with refusal, in which case you will still face penalties including potential jail time and license suspension even if you end up beating the DUI charge. For this reason, it is highly recommended that you comply with the request and submit to a blood alcohol test even if you believe that you are innocent.

    Types of Blood Alcohol Testing
    Under California law, drivers are generally given the choice to take either a breath test or blood test. However, if neither of these tests is available for whatever reason, you are then required to submit to a urine test instead.

    California law makes special exceptions for hemophiliacs or anyone taking anti-coagulants to treat a heart condition. If you fall into either of these categories, the law states that you cannot be forced to take a blood test, and instead, you will be required to submit to a urine test.

    Pre-Arrest Alcohol Testing
    The law of implied consent only applies to persons who have already been arrested for a DUI, which means that you cannot be forced to take a blood alcohol test until you have actually been arrested. This is where probable cause becomes important, as the officer cannot arrest you until they have proven that they have probable cause. That being said, the officer can still request that you submit to a preliminary alcohol screening in order to establish probable cause.

    During a preliminary alcohol screening, you will usually be asked to submit to a series of roadside sobriety tests and also to take a handheld breath test (breathalyzer). This preliminary alcohol screening is technically voluntary, but you can still be arrested should you refuse to submit to the test and the officer determines that you appear visibly impaired. However, if you are currently on probation for a previous DUI offense or are under the age of 21, the preliminary alcohol screening is mandatory and you cannot refuse.

    Refusing to Take a Post-Arrest BAC Test
    Even though the law of implied consent states that you are required to submit to a post-arrest blood alcohol screening, you do still have the right to refuse the test. Should you decide to refuse, the officer is legally obligated to inform you of the consequences of refusing the test, which includes a fine, suspension of your driver’s license and possibly jail time if you are convicted for a DUI offense. In addition, the officer is also required to inform you that you do not have a legal right to talk to an attorney prior to submitting to the test and also that your refusal to take the test can be used against you in court.

    If you refuse to take the BAC test, you will automatically have your driver’s license suspended for one year and be subject to a $125 fine. Anyone who refuses to take the test for a second time or refuses and has had a previous conviction for DUI or reckless driving within the past 10 years will automatically lose their license for two years. Similarly, a third refusal will see you having your driver’s license suspended for three years.

    Refusal to submit to a BAC test doesn’t mean that you can’t be convicted of a DUI. Convictions are possible even without the results of a blood alcohol test, and your refusal will usually be used to show that you were aware of your guilt. For this reason, it is usually best to submit to the test as required by law. This way, you can avoid the penalties for refusal and also give yourself a better chance of beating the DUI charge in court.

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