Implied Consent

California's implied consent law states drivers on California's roads have given consent to submit to a blood alcohol concentration test, also called a chemical test, if they are arrested for a DUI. You have already given your consent by driving on California's roads the same way you consent to driving according to traffic laws. Many people are unaware of this law and resist when they are required to submit to a chemical test. Unfortunately, refusing to submit to a chemical test has harsh consequences, often more severe than if you had submitted to the test in the first place.

Your Choice of Tests

You are required by law to submit to a test, be it the breath, blood, or urine test. Typically, you will be given the choice between the breathalyzer test and the blood test. Urine test are only available under certain conditions. If you choose a blood test, the blood must be drawn according to Title 17 regulations. A trained clinician in a laboratory environment must draw your blood and must follow the proper procedure for taking, storing, and analyzing samples. Violations of any of these regulations can compromise the reliability and validity of the test results. This may mean your test results cannot be used as evidence in your case. One of the benefits of the blood draw test is the clinician is required to draw enough blood to allow for multiple sample analyses. You are then allowed to have your own independent analysis of your blood done by a laboratory of your choice. Under California's implied consent law, refusing to submit to a test will result in an automatic suspension of your driving privileges for one year. This happens before you are even convicted. You will also face additional jail time and longer alcohol education classes.

You may be wondering whether or not you will be forced to submit to a test if you refuse. A driver's BAC level is a key component in a DUI case, and this information is aggressively pursued by the law. Without it, the district attorney's job is a little more difficult, but not impossible. In fact, refusing to submit to a test can be seen as an indicator of your guilt in and of itself. Therefore, refusing to submit to a test just so there is no BAC test result is often a bad idea. In most cases, a blood sample cannot be drawn against your will without a warrant. Because BAC levels generally lower as time goes on after your arrest, forced blood draws used to be commonplace. The Supreme Court recently held that drawing blood against your will is unconstitutional and a violation of your bodily privacy. Getting a warrant to take your blood, however, isn't as hard as you would think and can happen relatively quickly.

Your blood can be drawn without your consent and without a warrant in certain cases. For example, if you are suspected of a felony DUI, an officer may have your blood drawn forcibly. A DUI can be charged as a felony if you have a prior felony DUI, three or more prior offenses, or have injured or killed someone in an accident. In most misdemeanor DUI cases, however, this kind of executive action isn't warranted.

California's implied consent law hands down harsh consequences for those who refuse to submit to a chemical test after being lawfully arrested for a DUI. You can choose between a breath and a blood test in most cases. A blood test has the benefit of a chance to obtain an independent analysis, but it is invasive. While an officer cannot force you into providing a sufficient breath sample to test your BAC, he or she could feasibly force a blood draw. Forced blood draws, while they used to be routinely done, are considered unconstitutional and a serious violation of privacy. Even if you refuse, an officer may obtain a blood draw through force in certain circumstances or with a warrant. You can refuse to submit to a chemical test if you wish, but you will not escape the consequences. Even if you never provide a breath or blood sample for a chemical test, the district attorney can use this as evidence of your guilt. It is better to comply with the implied consent law to avoid any unnecessary consequences. If you question the validity of the test results, you can later obtain an attorney and challenge the results in court.

Are you facing DUI charges in California? Visalia area DUI defense attorney Christopher Martens can advise you of your rights and whether or not they were violated. With over ten years of experience as a criminal defense attorney, Christopher Martens has the skills and knowledge needed to help you prevail. At The Law Offices of Christopher Martens, every client gets the respect they deserve. Contact our Visalia or Hanford offices at 559-967-7386 or email us at [email protected] to discuss strategic options for your fighting your charges.