Implied Consent Laws The "Ultimate Guide"

Cases pertinent to DUI (Driving Under the Influence) hinge significantly on the results of the tests conducted by the police. For this reason, a police officer who stops a motorist on suspicion of DUI will not only check for physical signs of impairment but also request the motorist to submit to a breathalyzer test that will help determine their Blood Alcohol Concentration (BAC).

However, not every person willingly submits to this test from Law Enforcement and, without the suspect’s consent, a breathalyzer test cannot be conducted.

According to a study conducted by the National Highway Traffic Safety Administration (NHTSA), over 20 percent of suspected drunk drivers across the United States refuse to take a BAC test – understandably so, since, in the absence of a breathalyzer or any other BAC test, the issuing law enforcement officer will have no firm evidence of DUI and will only be relying upon their own testimony, and the suspect will have a far greater chance of getting off the hook.

What Is ‘Implied Consent’?

Because of the importance of breathalyzer tests in DUI cases, several states have created laws of implied consent and made them a part of issued licenses. This means that, when a person gets their driving license, they are implicitly granting consent to any law enforcement officer who might want to pull the driver over and conduct a chemical test or field sobriety assessments.

According to the implied consent laws, a law enforcement officer can conduct blood alcohol testing, a breathalyzer test, or any other chemical testing that might help determine the motorist's BAC level at the time of testing.

Before the implied consent law materialized, the Fourth Amendment of the Constitution permitted citizens to deny a BAC test as long as a warrant was not issued against them. This is also applicable to search and seizure, which motorists can refuse if the police did not have a warrant or probable cause.

However, the implied consent law is an exception to the state laws, making it mandatory for DUI suspects to submit to a chemical test to determine BAC levels.

If the arrested person is unconscious or incapacitated at the time of arrest, the police can operate under the assumption that consent has been granted and conduct a BAC test. According to the established rules, these test results would be admissible in a court of law, should the case move to trial.

What are the Penalties For Refusing a BAC Test?

The consequences for violating the implied consent law varies from state to state since the percentage of refusal is also highly variable between states (for instance, according to 2005 data compiled by the NHTSA, Delaware has a refusal rate of 2.1%, while over 80% people refuse to submit to a test in New Hampshire).

Generally, states will impose an automatic 6- to 12-month suspension of driving license. This period usually increases – along with possible jail time – if the person refusing to submit a test is a past DUI convict.

If you get your license suspended, your insurance company might end up canceling your policy. In some states, if a driver who refused to submit to a breathalyzer test is eventually found guilty of DUI, they will get an increased penalty compared to a DUI convict who consented to a test.

This is how some major states penalize a BAC test refusal:

California: Failing to submit to a BAC test might result in a citation. However, if a person initially refuses a BAC test but accepts a blood draw, he or she can be exempted from the refusal charge.

New York: An automatic driver's license suspension for a period of six months, along with a possible fine of $500.

Massachusetts: A six-month driver's license suspension; however, the refusal to submit to a BAC test cannot be used as implied proof of guilt in a DUI case. A lifelong driving license suspension if a person has three prior DUI offenses does not consent to a BAC test.

Ohio: A mandatory jail sentence of at least six days, OR a three-day jail sentence in addition to a 72-hour driver intervention program (plus a fine for people with a prior DUI conviction). If this is your second DUI offense in the last six years, you will have to spend a minimum of 20 days in jail.

Texas: A six-month suspension of your driving privileges (if you do not have a license, you might be denied the ability to obtain one for the next 180 days).

Illinois: An automatic one-year license suspension if this is the offender's first DUI conviction or statutory summary suspension in the last five years. For prior DUI convictions or people with a statutory summary suspension in the last five years, the length of the suspension is increased to three years.

The point at which refusal is criminalized also varies between states. For example, some states might charge you as soon as you refuse after being pulled over, while other states will charge you only when you refuse a test after being arrested.

Using Refusal As Evidence Against The Defendant

With the exception of a few states (such a Massachusetts), not consenting to a chemical BAC test can be admitted as incriminating evidence against the defendant – and is readily brought up by the prosecution at trial.

The argument made by a prosecutor is that if there was no impairment and the driver's blood alcohol concentration was within the legal limits (less than 0.08 percent in normal circumstances), they would not have refused a test. Hence, a failure to submit to the test is indicative of their guilt.

The permission to use the refusal as evidence is specifically crucial for prosecutors since it relieves them of the burden of having to prove that the accused was driving a motor vehicle with a BAC of above 0.08 percent. Instead, the prosecution only needs to prove that the driver was in some way impaired due to drugs, alcohol, prescription drugs, a combination of the three, or any other factor.

Related: 10 Tips to Hire the Best DUI Lawyer 

Contact A DUI Lawyer

Refusing to a test should and does not mean that you have successfully skirted or beat the system. Sure, it might seem like a good move at that moment, but the suspensions, fines, and harsher penalties should you be found guilty, will cause additional damage in the long run.

If you have been charged with a DUI or want to know more about implied consent laws and their consequences, you should find and consult a criminal defense attorney who is experienced in dealing with DUI or DWI cases.