What exactly is the Implied Consent Law in California, how does it define a chemical test “refusal” by a DUI Defendant, and what are the potential penalties a person may face? : CALIFORNIA DUI and CDL DEFENSE CENTER BLOG

What exactly is the Implied Consent Law in California, how does it define a chemical test “refusal” by a DUI Defendant, and what are the potential penalties a person may face?

by Attorney Felicia Woods-Yates on 05/03/15

What exactly is the Implied Consent Law in California, how does it define a chemical test “refusal” by a DUI Defendant, and what are the potential penalties a person may face?

There is no doubt about the fact that the state of California has some of the toughest DUI laws in the entire country.  Since driving in the state of California is considered a Privilege, and not a Right, then the state requires all licensees to agree to the Implied Consent Law. 

The Implied Consent Law is defined in California Vehicle Code section 23612(a)(1)(A) which reads as follows:  “A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcohol content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153...”  The last sections mentioned are where California sets forth their primary DUI laws.  Therefore, California law requires you to take a breath or blood test if you are arrested for a DUI, for the purpose of determining your blood alcohol content (BAC).

California Vehicle Code section 23612(a)(2)(B) further states that “If the person is lawfully arrested for driving under the influence of any drug or the combined influence of an alcoholic beverage and any drug, the person has the choice of whether the test shall be of his or her blood or breath, and the officer shall advise the person that he or she has that choice.”  This means that a person may also be arrested for driving a motor vehicle under the influence of any drug (prescription or non-prescription) in their system.  If you are suspected of a “DUID” or driving under the influence of drugs, then California Vehicle Code section 23612(a)(2)(C) provides that “A person who chooses to submit to a breath test may also be requested to submit to a blood test if the officer has reasonable cause to believe that the person was driving under the influence of a drug or the combined influence of an alcoholic beverage and a drug and if the officer has a clear indication that a blood test will reveal evidence of the person being under the influence…”  This means that under the Implied Consent Law, you may be required to submit to a second chemical test (blood – or urine if blood test is not available) to avoid a “refusal” allegation.

These tests must be administered at or near the time of your arrest - and the officer must give you the initial choice between a blood or breath test. If neither blood nor breath tests are available, then you have to take a urine test.  If it turns out later on that the stop, investigation, or arrest were illegal, then your entire case, as well as any chemical test “refusal” will be dismissed.  The officer should also advise that a “refusal” may result in a fine, license suspension, and possible jail time, if convicted.  By the way, you do not have the right to consult with an attorney prior to submitting to a chemical test.

What Are The Potential Penalties A Person May Face?

1st Offense

2nd offense

3rd Offense

Refusal to take a required Chemical Test

1 year suspension of license

2 year suspension of license

3 year suspension of license

 The penalty also jumps to a three-year suspension for your third refusal or if you have had more than one reckless-driving or DUI conviction within ten years.  California Vehicle Code Sections 13353 and 14905 define the suspension periods and fine amounts. 

Should You Refuse To Take A Mandatory DUI Test After You Have Been Arrested? 

No.  Refusing a test does not offer any guarantees you won’t be convicted.  The District Attorney’s office may also use your refusal against you, by arguing that you must have known you were somehow impaired or intoxicated.  There is actually a California Criminal Jury Instruction that allows the prosecutor to argue that refusal to take the chemical test constitutes a “consciousness of guilt.” 

What Happens If You Have Not Been Placed Under Arrest Yet For DUI…Are You Still Mandated To Submit To Chemical Testing? 

Absolutely Not!  pre-arrest chemical test is called a Preliminary Alcohol Screening (PAS) – it is nothing more than another Field Sobriety Test (FST).  Since you are not required to submit to any FSTs, then you are not required to submit to the PAS device testing out in the field, or anywhere for that matter.  The PAS device is a hand held breath testing instrument that tests the level of alcohol in your breath.  The exception to this PAS option would be if you are a driver under 21 years of age or you were on DUI probation at the time you were stopped - if you fall into either one of these two categories, then you must submit to a PAS test.  Refusing to take a PAS test cannot be used against you in your criminal case – but, voluntarily submitting to a PAS test, as they say on television, can and will be used against you in a court of law.  Like the other FSTs, it is best to respectfully decline the PAS test.

Since everyone's DUI incident is unique to that individual and the specific circumstances, you should consult with a competent defense attorney to determine your best course of action.  Felicia Yates has been practicing law for over 30 years in California and can be reached at (760) 326-5297, and found at Law Offices of Felicia Yates & Associates.



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