Content on Jalopnik Advisor is commercial in nature and independent of Jalopnik Editorial and Advertising. Jalopnik Advisor content is free to consumers and always will be, however we and our partners may be compensated if you purchase a product or service through the links on this website.
After a night of celebration, you’re driving home but having difficulty focusing on the road and your reflexes aren’t sharp. If you’re driving under the influence and an officer stops you, they may ask you to take a breathalyzer test to check your blood-alcohol concentration (BAC) levels. If you’re like 20 percent of motorists, you may decline.
While you are on the road following an arrest, it is important to be mindful that ‘implied consent’ may lead to a possible conviction. Although most attorneys have better chances of defending you if you don’t have your BAC checked, failure to submit comes with its own penalties.
Arrested for a DUI?
Let a DUI lawyer stop the suspension of your driver’s license.
What Is Implied Consent? The Basics
These laws mean that, implicit in obtaining a driver’s license and being on the road, you agree to have your BAC tested in certain instances after you have been arrested. Through these laws, a court can penalize you for driving under the influence (DUI) as a result of evidence they obtain from your BAC test. Generally, if your BAC test indicates that you have a 0.08 percent or higher amount of alcohol in your blood, you are driving under the influence of alcohol (DUI ‘per se’).
How Does Implied Consent Work?
A police officer is normally allowed to secure a breathalyzer test (this does not include the unofficial field breath test often requested on site), but there are certain restrictions on their ability to do so, including:
- An officer must have ‘probable cause’ to believe you’re driving under the influence before asking you to submit to a breathalyzer test
- You can only be asked to submit to a breathalyzer test (at the police station) after being arrested for a DUI
- An officer must notify you that a breathalyzer is mandatory and that there will be legal consequences for failure to submit to one
In some states, you may be required to submit to a breathalyzer test even if you refuse. Officers in these so-called ‘no refusal’ states may obtain a warrant from a judge to require an involuntary test. If you fail to comply with the warrant, you can be found in “contempt” and subject to a forced test.
Does Implied Consent Apply To Pre-Arrest Testing?
These laws typically do not extend to pre-arrest tests, also known as field sobriety tests. These tests include walking a straight line, touching your nose, and a preliminary breath test. Because these laws normally do not apply in this phase, the penalties for failure to submit also do not apply. Pre-arrest tests establish probable cause for arrest and enable an officer to conduct a BAC test.
Penalties For Refusing A Breathalyzer Test
Implied consent laws exist in all states and carry varying punishments for refusing to take a BAC test. In Birchfield v. North Dakota, the U.S. Supreme Court ruled that although motorists can’t be penalized criminally for failure to submit to a BAC test, they can be subject to administrative penalties.
The Court also found that a warrant is not required by police to demand a breathalyzer test.
Most states impose license suspension for 6-12 months upon refusal of a test. And, if a driver has previously refused a test, some states will impose a longer suspension. If you are found guilty of a DUI, then additional penalties, fines, and restrictions may follow. Furthermore, your car insurance company can cancel your policy.
Some examples of penalties for failure to submit to a breathalyzer include:
- California. A citation will be given unless the driver consents to a blood draw
- New York. A six-month suspension automatically will be given plus a possible $500 fine
- Massachusetts. An automatic six-month suspension applies and, after three refusals, a lifetime suspension
What Is The Implied Consent Law In Your State?
This answer varies depending on the specific laws of your state. You can visit the Foundation for Advancing Alcohol Responsibility’s website for a map of implied consent laws to learn more. Also, consider consulting your local motor vehicles department for a more conclusive answer specific to your case.
Should You Refuse To Take A Mandatory Breathalyzer Test?
As a result of implied consent laws, refusal to submit to a mandatory DUI test comes with hefty consequences. If the court decides that you were driving under the influence, additional fines and suspension could come from your failure to submit to a required test.
If, however, you believe that the police lacked probable cause to pull you over, you might be in a better position to refuse. If this is the case, constitutional protections against unreasonable search and seizure may apply, and you may have a valid defense. However, this is a less-common scenario and it’s not always easy to know what constitutes probable cause.
Still Unsure How Implied Consent Applies To Your Case? Speak To An Expert Today
If you believe you may have unfairly been treated in your DUI case, speak with a professional today. They will help you better understand your case and give you more insight into your options.
Legal Disclaimer: This article contains general legal information but does not constitute professional legal advice for your particular situation and should not be interpreted as creating an attorney-client relationship. If you have legal questions, you should seek the advice of an attorney licensed in your jurisdiction.
DUI laws can seem complicated once you peel back the layers, but Jalopnik’s legal team can help you make sense of it all.