As part of applying for a California driver's license, you agreed as a part of the application to allow a police officer to test your blood alcohol concentration, or BAC, level under suspicions you have been drinking and driving. You also agreed to perform a field sobriety test for an officer, if they ask you to do so. If you are like many drivers, you may have applied for your license as young as 16. Implied consent may have not been on your mind at the time as something to worry about but it is when you became a licensed California driver that you agreed to the implied consent law. In a way, you gave up some of you rights to privacy to have the right to driving privileges. So, if a police officer pulls you over and has probable cause to arrest you for a DUI, you have already implicitly agreed to take a chemical test to determine your BAC level at the time of arrest. This is also part of due process; the prosecution needs to demonstrate beyond a reasonable doubt that you had alcohol in your system, and above the California state limit of .08% for first time offenders over 21, at the time of driving. Without testing your BAC via a breathalyzer, blood or urine test, the prosecution lacks a key piece of evidence. You also would not want to be convicted of a DUI without this due process if you were below the legal limit. Unfortunately, for those guilty, due process will most likely result in a DUI charge. Refusing to take a BAC test will not mean you cannot be convicted of a DUI, however. The implied consent law accounts in part for the tendency for people to think refusing to submit to a BAC test will dismiss you of the charges. As a way to avoid potential conflict with people who have been drinking, this law requires you be cooperative, with severe consequences mandated for those to refuse to cooperate. In reality, refusing to submit to a test, given the implied consent law, will result in harsher penalties if you are convicted. In general, if arrested for a DUI, it is best to not refuse to take the BAC test. The reliability and accuracy of BAC tests have often been successfully challenged in court however refusing to take the BAC test will result in automatic license suspension of one year through the California DMV. You do have the right to refuse to a preliminary breathalyzer test prior to the actual arrest and the police officer should notify you of this right. If you have been drinking and driving however and you believe the officer has other reason to bring you in on suspicion of a DUI, it is best to not exercise this right. You most likely will be arrested anyways, at which point you will be forced to submit to a test, either a breathalyzer in the field or a blood or urine test later. The consent is implied to the extent that as a licensed driver, you have agreed to follow the rules of the road. When breaking those rules, or when a police officer has probable cause to believe you are breaking the rules, you are subject to immediate actions, a chemical BAC test included. Given the implied consent law, not actually consenting has its consequences. You cannot take this consent back if you want to be a license holder; it comes with the package of driving privileges. What you can do is inform yourself of the implied consent laws in California, be aware of what your rights are as a driver pulled over for a DUI and, if necessary, hire an experienced DUI defense attorney if you feel your rights were not respected or you are facing the penalties for refusing to consent to a BAC test at the time of arrest. And, as is often the case with DUI laws, the "costs" of drunk drivers on California roads is so high that sometimes, ordinary citizens are inconvenienced, and have their rights violated, for the greater safety of the community. Whether or not this is constitutional is up for debate but it helps explain why DUI laws allow police officers to do what they can to keep the roads free from drunk drivers. Driving is a privilege, in the eyes of the law, and taking advantage of that privilege subjects you to court and/or DMV action.
If you are facing DUI charges in Tulare, Kings or Fresno counties, The Law Offices of Christopher Martens can help. Experienced in DUI and criminal defense, attorney Christopher Martens can fight aggressively for you to ensure you are charged fairly and justly based on correct facts. Contact our offices at 559-967-7386 or email us at [email protected] to discuss your options for defending your case.