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Implied Consent Laws

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Implied Consent Laws

When you signed forms to apply for a driver’s license, you agreed to comply with requests by law enforcement officers to take chemical testing to determine your blood-alcohol content (BAC). Chemical testing includes breath, blood, and urine testing. A breath test can be administered roadside or at any location; blood and urine testing can only be performed at a medical facility or detention facility.

Refusing A Breath Test Is A Violation Of The Law

All states have ‘implied consent laws’ that come into effect when you are tested for BAC and it is either over .08 percent or you refuse to take a chemical test for BAC when requested by a police officer. In some states you may even find this information in the fine print on your driver’s license. The laws you are subjected to are those of the state in which you were arrested, not the state where you obtained your driver’s license.

Implied consent laws include:

  • Producing a driver’s license and proof of insurance when asked
  • Consenting to blood, urine, or breath tests to determine your blood-alcohol content if requested.
  • Performing field sobriety tests if requested.


While you can politely decline to take a chemical test or a field sobriety test to determine if you are intoxicated, there are penalties involved. Your defense attorney will attempt to have any penalties dropped for this, but law enforcement officials know that most people comply when they don’t know for certain what the chemical test result will show, but they do know for certain that there are consequences for refusal.

If you refuse to take a chemical test, you are likely to be arrested for ‘per se intoxication.’ This means that if you refused chemical testing or to cooperate with field sobriety tests, you can still be arrested if the officer has probable cause to believe you are intoxicated and a danger to the public or yourself. These reasons may be that you were weaving, made an illegal lane change, drove without headlights, or any number of other infractions. The police cannot pull you over for no reason at all, but don’t think that it is a difficult situation for them to find a reason. You can also be arrested if you cannot produce a driver’s license or proof of insurance. Under implied consent laws, in most states a driver’s license is automatically suspended for up to one year, even if the motorist is ultimately not found guilty of DUI.

Court Defenses Against Implied Consent

Implied consent laws are challenged by most criminal defense attorneys on the basis that in today’s society every person needs to be able to drive in order to lead a productive, normal life. Defense attorneys also argue double jeopardy: you are subject to criminal action for your DUI as well as license suspension. State officials avoid this situation by placing license suspension under administrative action by the DMV rather than a criminal issue.

The reasoning that supports implied consent laws is that driving is a privilege, not a right, and that law enforcement officials must determine if you are a danger to the public.

The penalties for refusing to take these tests are often more severe than if the driver fails one of the requested standardized field sobriety tests - the one-leg stand, the walk-and-turn, and the horizontal gaze nystagmus test.

In addition, some states consider your refusal to submit to chemical testing as an admission of guilt and allow your refusal to be used as evidence against you in a DUI trial. Certainly you are likely to face more severe punishment by the courts if you refuse chemical testing.

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