Understanding the Nuances of Implied Consent

Picture of Attorney Thomas Nicholas Cvietkovich

Californians who have been arrested on suspicion of driving under the influence of alcohol or drugs have a difficult decision to make when it comes to blood alcohol content tests. According to California’s vehicle code, those who have a California driver’s license have implicitly consented to a BAC test after their DUI arrests. Test results can be damning evidence against suspects in DUI court cases. However, people who refuse the test face legal punishments, including:

  • Driver’s license suspension;
  • Fines; and
  • Additional penalties if convicted on a DUI charge.

Even without the results from a BAC test, prosecutors have successfully used a defendant’s refusal as proof of his or her guilt.

If you have been arrested on suspicion of DUI, the arresting officer is required to inform you of your rights regarding BAC tests. With the stress of the situation, you may overlook some key nuances to the law.

Choice of Test

Police officers primarily use one of two methods to measure your BAC: a breath test or blood test. In most cases, you can choose which type of test will be administered. The exception is when an officer suspects you of being under the influence of drugs, in which case the officer must take a blood sample. When choosing a test, consider:

  • Breath tests are an estimate of your BAC and may falsely identify substances such as mouthwash as alcohol; and
  • Blood tests can be inaccurate if you ingested alcohol immediately before your arrest. Alcohol takes time to enter your blood stream, meaning a delayed test may show a higher BAC than what existed while you were driving.

Refusal Exceptions

The implied consent law does not require you to be conscious in order for an officer to perform a BAC test. However, you are allowed to refuse a type of test by citing a medical condition. For instance, you can refuse a blood test if you have hemophilia or use an anticoagulant for a heart condition. The officer will instead require you to take a breath test or provide a urine sample.

Legal Representation

Criminal defense attorneys will advise you to consult with them before speaking to a police officer after your arrest. However, California law explicitly states that you do not have the right to an attorney before deciding on whether to submit to a BAC test.

Still, an attorney should be the first person you call after you have been arrested on suspicion of DUI. A San Jose criminal defense attorney at the Law Offices of Thomas Nicholas Cvietkovich can determine the best defense to mount against your DUI charges. Schedule a free consultation by calling (408) 898-9653.



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