Violation of Implied Consent Law – What Can Happen to Me?

Implied consent law is a maxim of state law saying that you are deemed to 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). The purpose of this law is to help police officers measure your blood alcohol content (BAC) following a valid DUI arrest.

A violation of implied consent law can result in a

• driver’s license suspension and even
• enhanced DUI penalties if later convicted of drunk driving.

Some states even say that the implied consent law applies to preliminary breath tests (PBT). A PBT is basically another type of field sobriety test that authorities use to measure your intoxication level. Depending on the state, a PBT refusal can lead to a driver’s license suspension and an arrest for drunk driving.

Note that in some cases you can challenge an alleged violation of a state’s implied consent law at a DMV hearing. These are administrative hearings where you challenge the DMV’s decision to suspend or revoke your driver’s license.

In addition, you can challenge an alleged violation of the law during your criminal trial for the DUI offense (if one gets filed).

Common ways you can challenge a violation of the law, either at a DMV hearing or during a criminal trial, are by showing that:

• you were willing to take a breath or blood test,
• the arresting officer failed to inform you of the consequences of a test refusal, and/or
• the police stopped you for DUI without probable cause.

1. What is an implied consent law?

Under a state’s implied consent law, when you apply for a driver’s license, you give your consent to:

1. provide law enforcement with a breathalyzer test or blood test, and
2. do so when police have probable cause that you are driving under the influence of alcohol.

For example, California’s implied consent law is set forth in Vehicle Code 23612 VC. The California law reads:

“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 for an offense allegedly committed in violation of Section 23140, 23152, or 23153.”¹

Your refusal to provide a breath or blood test following a DUI arrest amounts to a violation of a state’s implied consent law.

2. What are the penalties for violating implied consent law?

The specific penalties for violating an implied consent law will vary across different jurisdictions.

With that said, however, most state laws say that your state’s DMV can suspend your driving privileges for six to twelve months following a breath or blood test refusal.²

Suspension times will likely increase if you have prior DUI convictions.

Further, a BAC test refusal can lead to enhanced DUI penalties if you are later convicted of drunk driving. Enhanced penalties mean that a judge can impose a harsher sentence than for a normal DUI (for example, one with additional jail time).

Some states also provide that, should your DUI case go to trial, your refusal to take a chemical test will be admissible as evidence of guilt.³

3. Can I refuse the preliminary alcohol screening tests?

State DUI laws differ as to whether you can legally refuse to provide a preliminary alcohol screening (PAS) breath test (also referred to as a preliminary breath test).⁴

Some states say that the implied consent law only applies to breath or blood tests after a lawful DUI arrest. This means that you can still refuse to take a PAS test before an arrest takes place.⁵

Though other states say that if you refuse a preliminary breath test (PBT), an officer may immediately seize your driver’s license and arrest you for DUI. Note, however, that the arresting officer cannot physically force you to take the PBT.⁶

4. Do the police have to warn about the consequences of a test refusal?

Most often, yes. Law enforcement officers usually have to warn you of the consequences of refusing to comply with a state’s implied consent law.

Officers typically deliver this “implied consent warning” right after delivering Miranda warnings (where you are informed you have the right to remain silent and get a lawyer, etc.).

5. Are there special considerations for blood test refusals?

Yes. Implied consent laws deserve extra attention when it comes to chemical tests following a lawful DUI arrest.

Most states extend their implied consent laws to both breath and blood tests (but not urine tests). In 2016, the Supreme Court of the United States ruled that it is unconstitutional for a state to make it a crime to refuse a blood test without a lawful warrant.⁷

This Supreme Court case dealt with states that make it a separate crime to refuse a DUI blood test after an arrest. Many implied consent laws, however, just impose additional penalties for chemical test refusals. So, it remains for courts to decide if this is also unconstitutional and if a state’s implied consent law cannot in fact be applied to blood tests.

As an aside, note that most states say there are three situations where police can require you to submit to a blood test. These are when there is:

1. a warrant for the test,
2. suspicion of a felony DUI, and/or
3. suspicion of DUID.

6. How will refusing the test affect my criminal charges?

As mentioned above, some states say that breath or blood test refusals can be used as evidence against you if you are charged criminally with DUI.⁸

Further, prosecutors may be less likely to extend a favorable plea deal if you refused a breath or blood test. In addition, if the DUI case goes to trial, the prosecutor can argue that you refused to give test results to hide that you were drunk or high.

7. Can I challenge the DMV’s decision to suspend my license?

Most often, yes. If a state’s DMV suspends your driver’s license because of an alleged breath or blood test refusal, you can try to challenge the suspension at a DMV license suspension hearing.

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 (see below) 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. You can challenge a license suspension only at a DMV hearing.

8. Can I raise a defense to allegations of a test refusal?

Most often, yes. Depending on the facts of a case, DUI lawyers may be able to use the following arguments to show that the police took your driver’s license without authority:

• you were willing to take an evidentiary breath or blood test,
• you were incapable of refusing a test,
• the arresting officer failed to inform you that refusing a test will result in a license suspension, and/or
• the police stopped you for DUI without probable cause.

DUI attorneys may be able to use these arguments in DMV hearings to try to save your driver’s license.

Further, you may be able to raise these defenses in criminal court in an effort to exclude the state’s evidence that you refused a test.

Additional reading

For more in-depth information, refer to these scholarly articles:

• The Privacy Implications of DUI Refusals and Forced Blood Alcohol Tests: What Judges Can Do – Criminal Justice.
• Keeping DUI Implied Consent Laws Implied – Willamette Law Review article about the utility of chemical test refusal laws.
• Admissibility of Refusal to Submit to Blood Alcohol Test – Nova Law Journal article about whether chemical test refusals can be used as evidence in a trial.
• Refusal to Submit to a Chemical Test: Whether Refusing Really Counts as a Refusal – JFK University Law Review.
• The Admissibility of Refusals in Drunk Driving Prosecutions: A Violation of the Fifth Amendment – Pacific Law Journal.

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