Implied Consent Law 2017-05-07T05:04:07+00:00


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What is the Implied Consent Law

Operating a Motor Vehicle on California public roadways is a “conditional privilege.” Meaning, the State of California will grant a person the privilege to drive within the State but, there are “strings attached.” For a person to drive in California, they must attend and pass an approved driver’s instructional course. All California drivers must pass an approved written and “behind the wheel” exam to demonstrate their ability to safely operate a motor vehicle. All California drivers are required to know and obey the “rules of the road;” and, all California drivers are required to maintain appropriate automobile insurance.

One of the most powerful rules that a driver agrees to when they first receive their California drivers license, is the “Implied Consent Law.” California Vehicle Code Section 23612, makes it mandatory for a driver, who has been lawfully arrested, to submit to a test of their blood or breath to determine their alcohol level:

“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 breath, if lawfully arrested……”

Does the Implied Consent Law Apply to Everyone?

When a driver, first being licensed in the State of California, accepts their driver’s license, they sign an acknowledgement that they understand and will abide by this law. Essentially, when first receiving their driver’s license, a person creates a civil contract with the State of California wherein they relinquish their right against unreasonable search and seizure and, in return, are granted the privilege to drive. To refuse to submit to such a chemical test violates the Implied Consent Law; breaks the civil contract with the State; and subjects the driver to severe penalties.

Many times, drivers do not recall establishing a civil contract with the State and/or they have forgotten its requirements. Because of this and, because the penalties for violating the Implied Consent Law have painful consequences, police officers are mandated to expressly advise drivers regarding the provisions of the Implied Consent law. In its text, the law repeatedly mandates that a police officer shall advise the driver of the provisions of the law.


  • Recent changes in the law have made the option of urinalysis less common. In fact, the Implied Consent Law expressly eliminates the option for a test of one’s urine, unless blood and breath testing are not readily available.

Implied Consent Law – The Real Facts

What Are My Rights and Obligations?

Many drivers are confused about their right to have an attorney present when making a decision to submit to a chemical test of their blood or breath. This confusion can be exacerbated by the fact that two laws are in conflict with one another. For decades, citizens of the United States have known about their legal right to counsel before making any statements to police or making any critical decisions in their case.

In its landmark 1966 decision, the United States Supreme Court ruled in the case of Miranda v. Arizona, that a police officer seeking to conduct a “custodial” interview or interrogation of a citizen, must first advise that person of their right to an attorney. Over the years, Hollywood has engrained a general expectation that citizens will be advised of their “Miranda Rights,” when they are arrested. We are provided with this protection under the Fifth Amendment to the United States Constitution and many drivers incorrectly expect to be protected by its provisions.

The California Implied Consent Law stands in stark contrast to the rule of Miranda. When accepting the privilege to drive in California, our citizens expressly waive their right to an attorney before making a decision about submitting to a blood or a breath test. In effect, if a driver is lawfully arrested, he or she must submit to a blood or a breath test without the benefit of speaking with an attorney.


Chemical Test Refusal is Breaking the Implied Consent Law

Whenever a driver in California is “lawfully arrested” for suspicion of DUI, the Implied Consent Law requires that driver to submit a testing of their blood or breath to determine the blood/alcohol concentration. When a driver declines to submit to such testing, it is referred to as a “Chemical Test Refusal.”

Because the California Vehicle Code provides extensive periods of license suspension or revocation as a result of a Chemical Test Refusal, the law provides considerably detailed guidelines that an arresting officer must follow while advising the driver of the Implied Consent Law. At the same time, an equally demanding degree of control is placed on the driver to comply with the reasonable requests of a police officer.

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What if I Do Not Consent to a Blood Test?

Shocking as it may seem, many California Police Agencies are adopting the policy of drawing a driver’s blood by means of physical force, if the driver will not willingly comply. For many years, it was an accepted policy for police departments to only authorize the drawing of blood by means of force in felony or fatality cases. Today, however, the use of physical restraint to seize a blood sample in simple misdemeanor cases is increasing in frequency.

In the eyes of the Department of Motor Vehicles, a driver who resists the collection of a blood sample, thereby causing the arresting officer to seize the sample “by force,” shall have his or her license suspended or revoked in the same manner as for a “refusal.”

So, the question clearly becomes, what constitutes a “forced blood draw?” Clearly where a police officer or officers must exert actual, physical restraint and control to overcome a driver’s physical resistance to testing, a “forced blood draw” would apply. But what happens if a driver initially refuses to comply with the officer’s demand for blood but then relents when threatened with physical restraint? If the driver verbally contests the drawing of his blood but, in no way physically resists, is this a “Refusal” and is the blood draw then considered a “forced blood?” Is a “refusal” an oral communication or a physical resistance?

An unpublished decision by the Court of Appeals,

[Hart v. Department of Motor Vehicles, 240 Cal. Rptr. 373 (App. 4th Dist. 1987)] determined “an oral refusal will support a suspension where the officer elects to honor it, but not where he chooses to proceed with a test notwithstanding, the arrestee is entirely cooperative, and no appreciable time is lost as a result of the initial lack of a positive verbal response.”

When presiding over a “Chemical Test Refusal” suspension hearing, the DMV Hearing Officer is only obligated to review four elements:1.)

1.Did the officer have reasonable cause to suspect the driver was operating a motor vehicle while impaired? Essentially this means, did the driver commit a violation of the vehicle code prompting an enforcement stop by the officer; was the driver involved in a traffic accident where his driving can be established through circumstantial evidence or; was the vehicle obstructing traffic and the person’s driving can be established through circumstantial evidence. This is a determination to be made by the DMV hearing officer and therefore, if a court were to later determine that no probable cause existed to contact the driver, it would not be binding upon the DMV.

2.) Was the driver legally arrested? In most instances, the prevailing argument here is whether or not the officer actually saw the accused drive the vehicle, or if any independent person witnessed the accused drivingIn a courtroom environment, driving may be proven simply because the driver had “functional control of the car.” This would normally mean the accused was in the driver’s seat with the key in the ignition and he possessed the immediate ability to drive. At a DMV hearing, however, a California Supreme Court decision requires actual movement of the car. In the case, [Mercer v. Department of Motor Vehicles, 53 Cal. 3d 753, 280 Cal. Rptr. 745, 809 P.2d 404 (1991)], the court reasoned that a lawful arrest for DUI required, “some volitional movement of the vehicle perceived by the senses of the arresting officer.”

Conversely, however, in 2007, the California Supreme Court reviewed this issue again and, this time ruled that actual proof of driving was not a necessary element in a chemical test refusal hearing, Troppman v. Valverde, 2007, Cal. 4th (Docket No. 132496). The Chief Justice wrote, “consent may be implied by the act of driving at any time, not only during the time period immediately preceding the individual’s arrest.” Based on this ruling, the Court indicates the mere reasonable cause to believe that the person “had been driving,” is enough to trigger the Implied Consent law

This is yet another example of how our criminal and administrative justice system confounds and confuses and provides the DMV Hearing Officer another way to sustain a suspension.

3.) Did the arresting officer appropriately advise the driver of the penalties for refusal? California Vehicle Code section 23612 specifically mandates that a driver submit to a blood or breath test at the request of a police officer, following a “legal arrest” for suspicion of DUI. That same section, however, clearly demands that the arresting officer advise the accused driver of each and every penalty or consequence should they continue to refuse.

Often the officer will use language to suggest that a driver’s license MAY be suspended for a chemical test refusal when, in fact, the law directs that a driver’s license SHALL be suspended for such a refusal. The simple implication that a person’s license may not be suspended creates an element of confusion in the officer’s advisal.

Another source of “officer induced confusion” occurs when a driver is arrested for DUI and the arresting officer advises the accused of his or her right to an attorney pursuant to the provisions of his or her Miranda Rights. Having just been told that he or she has the right to an attorney, the officer then advises the driver of the Implied Consent Law which specifically omits the driver’s right to counsel before making a decision to submit to a blood or breath test.

Yet another source of confusion in a refusal advisal may occur when a person simply cannot understand what the officer is saying. Case law is replete with examples of a driver not being able to hear the officer’s admonishment due to loud noises at or around the time of advisal. A refusal advisal may not be valid if the officer is speaking to a driver in a language not readily understood by the driver or if the driver is suffering with an injury or medical condition which renders him unable to understand the advisal.

4.) Did the driver refuse to submit to or fail to complete the test? What precisely constitutes a refusal is often a subjective interpretation of events by the arresting officer. Officers will often become frustrated by the requirements that a driver clearly understand the advisal. Officers will often allow their own animosity toward the driver to cause them to allege a “refusal” much too quickly. It is common for officers to misinterpret a driver’s questions as being obstructive or an attempt to cause a delay in the collection of a blood or breath sample when, in fact, the driver is attempting to gather information to make an informed decision. The following items should be considered when determining the validity of an accused refusal:

  1. An arresting officer is not required to repeat the advisalIn the case of Dunlap v. Department of Motor Vehicles [156 Cal. App. 3d 279, 202 Cal. Rptr. 729 (5th Dist. 1984)], “one offer plus one rejection equals one refusal and one suspension.”
  2. If an accused driver elects to submit to a breath test and, during the testing sequence the breath machine malfunctions, the driver is required to submit to another testIn the event the driver declines the additional test, it is deemed a refusal. [Gobin v. Alexis, 153 Cal. App.3d 641, 200 Cal. Rptr. 397 (2nd Dist. 1984)].
  3. As stated above, in question #3, it is common for an arresting officer to create confusion when first advising a driver of his right to counsel pursuant to Miranda and then contradict himself by advising the driver of his requirement to submit to a blood or breath test, without the advice of an attorney, pursuant to the Implied Consent Law. The confusion may be cured if the officer takes the time to clarify the conflict in the laws and makes clear the driver’s requirement to submit to testing.
  4. Even if a driver has successfully completed a test, it may still be deemed a refusal if, in fact, the driver resisted the test in “any significant way.” This occurs regularly when a driver adamantly refuses to submit a blood or breath test but when threatened with physical restraint, submits to the blood test while verbally protesting [Barrie v. Alexis, 151 Cal. App. 3d 1157, 199 Cal. Rptr. 258 (2nd Dist. 1984)].
  5. A simple recitation of the Implied Consent Law or an actual “verbatim” reading of the law may not fulfill the officer’s requirement to insure the exact requirements and consequences of the law. Officers will often resort to summarizing the requirements of the law; which may not fulfill his requirements for full advisalIn an unusual but relevant case, [Thompson v. Department of Motor Vehicles, 107 Cal. App. 3d 354, 165 Cal. Rptr. 626 (5th Dist. 1980)], the court ruled that an officer has the obligation to ensure the driver could hear and understand the advisalIn this instance, a loud police radio made it impossible for the driver to clearly hear and understand the advisal as it was recited by the arresting officer.
  6. It is quite common for a driver to willingly submit to a test but, as a result of a medical limitation, be unable to complete the test. Despite the driver’s clear willingness to comply by selecting a test, if he cannot or does not complete the chosen test, he must submit to an alternate test. If he declines to submit to the alternate test, it is deemed a refusal.
  7. Where a driver has been injured in a traffic accident or an assault and where his ability to comprehend is affected by consciousness, head trauma, shock or pain; any refusal to submit to a blood or a breath test is very much in questionIn Hughley v. Department of Motor Vehicles, 235 Cal. App. 3d 752, 1 Cal. Rptr. 2d 115 (3rd Dist. 1991), a police officer attempted to arrest a motorcyclist following a traffic accidentAlthough the driver had no visible head trauma, he did demonstrate odd behavior, in that he appeared to be going “in and out” of awareness. The officer used a degree of force to physically restrain the driver and take him into custodyAt the police station the driver flatly refused any chemical testingIn appealing his suspension, the driver argued that as a result of head traumaSection 23612 (a)(5) of the California Vehicle Code, determines that “a person who is unconscious or in a condition rendering him or her incapable of refusal is deemed not to have refused.” An appellate court determined that a driver should be permitted to introduce such evidence which demonstrates “he or she should be deemed not to have refused to submit due to a medical condition unrelated to alcohol use.”
  8. Where an arresting officer advising a driver of his or her requirements to submit to a blood or breath tests speaks to the driver in a language not primarily spoken by the driver, some issue of confusion may arise.
  9. In some arrests, a driver may listen to the arresting officer’s admonishment pursuant to the Implied Consent Law and then, when asked to make a choice between blood or breath testing, the driver simply does not replyUnwillingness to voice one’s choice of testing is determined to be a “constructive refusal” and will result in a suspension of the license.
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