The Doctrine of Implied Consent in a DUI Case

Implied consent is a legal understanding about how to view breath tests, blood tests and other DUI chemical tests. Under implied consent, you “consented” to the DUI test on the day you requested the privilege of driving.

Normally in the United States, a suspect in a criminal case cannot be searched unless there is a warrant from a judge—or if they agree to the search. The chemical tests used in DUI cases represent a rare exception to this. This is because of a legal doctrine used in California and across the country known as “implied consent.”

Implied consent essentially says you already agreed to the chemical test long before you were arrested for DUI. This is because agreeing to the test is one of the preconditions of being allowed to drive. If you’re driving, and you’re arrested for DUI, the chemical test is not optional.

How does implied consent work?

Implied consent is similar to the “terms and conditions” you see when you sign up for a website like Facebook or Vine. All you really want to do is get access to the site, but you have to check a box that says, “I agree to the terms and conditions.” Almost no one actually reads the terms and conditions, but we all agree to them, and technically, we have to follow them.

Driving works the same way. When you get a driver’s license, all you really want is the privilege to drive. But you have to agree to certain legal rules first. One of these is consenting that you will provide a blood, breath or urine sample if you’re ever arrested for DUI.

Once you’re actually arrested, you may say you never consented to the test, but the truth is you consented months or years earlier.

What are the effects of “implied consent” on DUI cases?

The doctrine of implied consent has several major effects:

  • If you are arrested for DUI and refuse the test, you face big penalties.
  • If you are hurt in a DUI accident the police may, under some circumstances, take a blood sample while you are unconscious.
  • Normally, a blood, breath or urine sample would count as a form of search and seizure and require a warrant. But, in most cases, police do not need a warrant to order you to provide the sample.

This rule about implied consent only applies to chemical tests after you’re arrested for DUI. If you are pulled over and haven’t been arrested yet, and the officer asks you to take a PAS breath test, in most cases you are allowed to refuse.

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