To help prevent driving under the influence (DUI) of alcohol, each state has an implied consent law that applies to every person with a driver’s license. But what is the implied consent law? It’s important to understand what the law says and how it works so that you know what you’re required to do during a traffic stop and to avoid inadvertently giving up your own rights. This guide will cover everything you need to know about implied consent, from what it is to penalties if you don’t follow it.
What Is the Implied Consent Law?
Let’s start with the question of what is the implied consent law. This law covers anyone who applies for and receives a driver’s license. It stipulates that when you obtain your license, you’re providing consent to tests of your blood alcohol content (BAC) if you were pulled over while driving and a police officer requests it.
There are two widely used types of BAC tests, which are breath tests conducted with a breathalyzer and blood tests. Each of these is considered a search by the Fourth Amendment. If a police officer doesn’t have a warrant, then they would typically need a suspect’s consent to conduct any searches of that suspect or that suspect’s property.
That’s where implied consent comes in. Because you’ve given your implied consent when you obtained your driver’s license, the police officer doesn’t need your consent at the time or a warrant to search you, which in this case means testing your BAC.
One area where you have a say in the matter is the type of BAC test you take. The most common option is the breath test, because the breathalyzer is a small, portable device that police can keep with them. It’s also non-invasive, as you only need to blow into the device.
A blood test is invasive, since it requires a medical professional piercing your skin with a needle. This also means it isn’t something a police officer can perform in the middle of a traffic stop.
The implied consent law gives police officers the right to require you to take a breath test, but not a blood test, since that’s the non-invasive option. You can choose a blood test instead of a breath test if you want, though.
What Are the Penalties Involved in Refusing the Tests?
Now that we’ve covered what is the implied consent law, it’s time to go over what penalties are involved if you refuse a BAC test. This crime is considered the same as a DUI. This means that penalties tend to be very similar and it will count as a DUI on your record. The two most significant factors in determining your penalties are the state where you were driving at the time and if you have any prior DUI offenses.
Depending on the state, refusing a BAC test could result in suspension of your driver’s license, revocation of your driver’s license, fines, jailtime or mandatory installation of an ignition interlock device on your car. The penalties become more severe for each prior offense you’ve had.
For example, California suspends your license for one year when you refuse to take a BAC test if it’s your first DUI offense. On a second offense, it suspends your license for two years, and on a third offense, it suspends your license for three years. Colorado does the same, except it revokes your license instead of suspending it. The difference is that after a license suspension is up, your driving privileges return to normal. After a license revocation period is up, you need to apply for a new driver’s license.
Is the Implied Consent Law Applied in All States?
That covers what is the implied consent law and its penalties. But what about how application varies from state to state? There is an implied consent law in every state. For the most part, they work the same, but one state is an exception in that regard.
In most states, although you can receive punishment for refusal to take a BAC test, you can’t be forced to do so. In Nevada, the law allows police officers to instruct medical professionals to use reasonable force in getting a blood sample.
Besides that, the only difference in the implied consent law among the different states is in their penalties, where the type of penalty and severity can be quite different. Earlier, we mentioned that California suspends your license for one year on a first offense. In Alabama, the penalty for a first offense is a 90-day suspension of your license.
Alaska may have the most severe penalties for refusing a BAC test, as you’re required to serve three days in jail on a first offense and have an ignition interlock device installed in your car. You can also receive a fine of up to $1,500.
Note that even though each state has an implied consent law, each state also requires police officers to have probable cause for a mandatory BAC test. Officers obviously can’t just pull over whoever they’d like and have them take a breathalyzer. Although there are plenty of ways for officers to show probable cause to suspect that a driver was intoxicated, if they can’t show probable cause, the case may be thrown out.
Understanding what is the implied consent law is simple enough. It’s important to know about it, though, because it’s one of the few situations where you’re legally required to comply with a police officer’s search request. In most situations, it’s better to take the test, because there’s no benefit to refusing. You can usually opt for the blood test if you’d prefer that. However, you will need to take either that or a breathalyzer if an officer asks.