What is Implied Consent?

What is Implied Consent?

Posted By Hanson, Gorian, Bradford & Hanich || 28-Feb-2018

According to California’s “implied consent” law, all state licensed drivers who are lawfully arrested for a DUI are required to submit to chemical testing to determine BAC or the number of drugs in the individual’s system. In order for an arrest to be considered lawful, law enforcement must establish probable cause to believe a suspect has been driving under the influence of alcohol or drugs.

The penalties for refusing a post-arrest chemical test for the first time include driver’s license suspension for up to one year. Whether it is a second refusal, the suspect had a reckless driving conviction, or the suspect had a DUI conviction within the last ten years, it is a two-year license suspension. No matter which offense it is, the maximum fine will always be $125.

However, recent Supreme Court rulings have found that drawing blood on a DUI suspect without a warrant is in violation of Fourth Amendment rights. Although law enforcement must notify the individual that failure to submit a test could result in administrative and criminal penalties, a person technically can refuse a test and ask for a warrant under their Fourth Amendment rights, according to the Supreme Court ruling in Birchfield v. North Dakota.

According to the Birchfield v. North Dakota case, the Supreme Court found that criminalizing the refusal to take a blood test violates the Fourth Amendment, since warrantless blood draws are generally prohibited. An individual cannot be punished for exercising their Constitutional rights.

Currently, there is a Santa Clara County Superior Court case pending for review by the Supreme Court where a man’s blood was drawn without a warrant while unconscious. The former court denied the person’s motion to suppress the blood test in a DUI case, on the basis the officer was acting in good faith in relying on the implied consent law to withdraw blood without a warrant. If the case does reach the Supreme Court, they will review whether or not Fourth Amendment rights were violated of if the good faith ruling will stay.

So, as of right now, California’s implied consent laws are still applicable. If you have been arrested for a DUI, it is critical to seek immediate legal representation from an experienced criminal defense lawyer.

For more information, contact us and request a free consultation today.

Categories: DUI Charges