According to California's implied consent laws, every driver must submit to a breath test to measure his/her BAC (blood alcohol concentration). Usually, a driver has to undergo a DUI test after an arrest for a DUI, according to the California Vehicle Code 23152. It is essential to understand your rights, including the right to sobriety testing. For instance, the implied consent law will only apply to you after an official DUI arrest. If you are not yet under arrest for DUI, you may refuse to take the PAS (preliminary alcohol screening) test. If you violate the implied consent laws, you may face harsh penalties under California law. The DUI Defense Attorney can help fight charges for violating implied consent laws.
Implied Consent Law in California
When police in California suspect that you are intoxicated and stop your vehicle, they will ask you to undergo some sobriety tests. You can decline some tests like the PAS test without penalty. However, you cannot decline to undertake tests outlined under California implied consent laws because you may face detrimental penalties. California implied consent law requires you to stop and take a chemical test to measure your BAC after a DUI arrest. The law enforcement officer must have a valid reason for requesting you to undertake a BAC test.
Immediately to acquire a driving license in California, you automatically agree to all forms of sobriety tests that law enforcement officers may request you to undertake. According to California Vehicle Code 23612, any person who operates a vehicle in California is assumed to have consented to chemical testing or breath testing to measure blood alcohol content. It does not matter whether you were aware of your implied consent at the time of taking the license or not. As long as you applied and obtained a driver's license, you automatically gave consent to all forms of DUI testing. When are you required to undertake a BAC test? You have to submit to a DUI test after an arrest for violation of California vehicle code 23152, 23153, and 23140.
Violating Implied Consent Laws
What happens if you breach California implied consent laws? On top of facing the standard penalties for driving under the influence, you will face enhanced penalties if you refuse to undertake a test. The California Department of Motor Vehicles (DMV) may suspend your license if you refuse to undertake a sobriety test. You should note that license suspension is mandatory upon refusal of a DUI test irrespective of the outcome of the test if you later submit to the test.
California implied consent laws apply to breath tests and blood tests. At times, you may not face charges if you refuse to undergo a blood test. According to the Supreme Court of the United States, if the police do not have a warrant, you may not face charges for refusing a blood test. The implied consent law will only apply after an arrest. If the police have not placed you under arrest, you may refuse to undertake the tests, and you will not face penalties.
Field Sobriety and PAS Tests
If you are operating a vehicle in California and the police stop you DUI suspicion, the police will look for signs of impairment. The police may request you to take a sobriety test to check whether you are under the influence. If the officer notices signs of impairment like bloodshot eyes and lack of concentration, he/she may recommend a breath test. You should be aware that you can decline some tests without any penalty. Refusing to undertake a sobriety test does not mean that you have something to hide. For instance, most drivers who fully understand their rights do not submit to a PAS test. In addition to the PAS test, the police may ask you to undertake field sobriety tests. The tests may include physical tests requiring to stand on one foot or to walk along a straight line. While undertaking the physical exercises, the police will be keenly looking for signs of intoxication. You can refuse to submit to field sobriety tests without any consequence.
In some instances, a PAS test may be mandatory, and refusal to submit may lead to penalties. For example, it is compulsory to submit to a preliminary alcohol-screening test if you are below the age of 21 years. If you are currently serving probation for committing a prior DUI offense, you have to submit to a PAS test. However, as long as you are above 21 years, and you are not on DUI probation, you do not have to submit to the PAS and field sobriety tests. You should note that if you agree to undergo a PAS test, the results of the test may lead to a DUI conviction. Therefore, if possible, it is advisable to refuse a PAS test.
Refusing a Post-Arrest Breath Test
The basic consequences for refusing a post-arrest breath test include losing your driver's license for a significant period. You will also face additional consequences on top of the standard DUI penalties. What are the enhanced penalties for breath test refusal? If you commit a first time DUI offense, you will face additional jail time of 48 hours. You will attend California DUI School for a minimum period of 9 months. If you commit a first –time DUI offense that does not include a refusal to undertake a test, you would only have to serve three-month California DUI School.
If you commit a second DUI offense within ten years accompanied by a DUI test refusal, you will face an additional 96 hours in the county jail on top of the standard DUI penalties. If you commit a third DUI offense within ten years, and you refuse to submit to a breath or chemical test, you will face an additional ten days in California county jail. If you commit a fourth or subsequent DUI offense in California within ten years accompanied by DUI test refusal, you will face an additional 18 days in county jail.
Implied Consent Laws and Chemical Tests
If you examine California implied consent laws in the context of chemical tests after a DUI arrest, the law is questionable. Initially, the implied consent laws applied to both breath tests and blood tests. However, the Supreme Court of the United States made some changes in 2016. The new changes are based on the decision made in the case of Birchfield v. North Dakota. In deciding Birchfield v. North Dakota, the court maintained that it is unlawful to accuse a person of committing a crime if the person refuses a blood test without a lawful warrant. It is important to note that the Birchfield v. North Dakota case mainly dealt with states that charge people with a separate crime for refusing to submit to a DUI test. However, this is not the case in California. The state of California does not treat a refusal to undertake a DUI test as a separate crime. Instead, in California, you will only face additional charges on top of your DUI charges for refusing a test. You will not face charges for a separate crime of DUI test refusal.
When Will the Police Require You to Undertake a Test?
The police may require you to undertake a DUI test under three conditions. If the police have a warrant for the test, they may require you to take the test. The police may also require you to submit to a test if they suspect that you are guilty of committing a California felony DUI. The police may also request you to submit to a test if they suspect that you are driving under the influence of drugs (DUID).
Typically, the police obtained a warrant for the test from a judge. For instance, a judge offers a legal authorization for a chemical test. As long as the police have a valid warrant, they may request you to submit to a test.
If the police suspect that you have committed a felony DUI offense, they may subject you to a chemical test. The police will subject you to a test without a warrant if they cannot quickly obtain the warrant. The police may use a forcible draw of your blood to conduct a chemical test. When does a DUI offense qualify as a felony? A DUI offense may be eligible as a felony under certain circumstances. If the DUI causes an injury, it may qualify as a felony. You may also face felony DUI charges if you have three or more DUI offenses within ten years. You should note lesser offenses like wet reckless qualify as priorable DUI offenses. You may also face felony DUI charges if you have at least one felony DUI offense on your record.
If the police suspect that you are under the influence of drugs, they may require you to submit to a chemical test. The police will require you to submit to a chemical test if they have a clear indication that a DUI blood test may reveal the presence of drugs. How can law enforcement officers gain a clear indication that you may have drugs in your system? The police may look out for object symptoms of drug intoxication. The police may also assume a clear indication based on physical evidence of drug use. Physical evidence of drug use may include the presence of drug paraphernalia in your vehicle or the presence of actual drugs in your vehicle. The police may also assume a clear indication of drug use based on a driver's statements.
The Legality of Forcible Blood Testing
As a driver in California, the Fourth Amendment rights apply to you and extend to chemical testing. Just like the police cannot enter your house and conduct a search without a warrant, the police may also not draw blood from you without a warrant. The Supreme Court ruled against drawing blood without a warrant in 2013. The court maintained that even though alcohol may leave over time, law enforcement officers have no right to draw blood without a warrant. In 2016, the Supreme Court rendered laws that made it illegal to refuse a blood test after a DUI arrest unconstitutional. The police do not require a warrant to conduct a breath test but need the warrant to conduct a blood test. The police may conduct a forcible blood draw and argue that there was no time to obtain a warrant. However, rarely is there not enough time to seek a warrant. The police must provide substantial evidence and reasoning as to why they assumed there was no enough time to seek a warrant before conducting a blood draw. Your blood carries a lot of crucial information, and if analyzed, it can reveal a wide range of facts about you. Therefore, the police should treat your blood with privacy.
When the police conduct a breath test, they can get all the information they need to make a DUI conviction. When the police draw blood from a driver and analyze it, they will get more information than they need to make a DUI conviction. The court also maintained that drawing blood is a more intrusive procedure than a DUI breath test. Therefore, the court maintained that for a blood test, the law enforcement officer should seek a warrant before conducting the test.
If the police draw blood from drivers without a warrant, they may violate the provisions of the Fourth Amendment to the U.S constitution. The fourth amendment states that no one should violate the rights of people to be secure in persons. The amendment also gives people the right to be secure in the houses and gives them protection against unreasonable searches and seizures. There are some exceptions to the Fourth Amendment. However, no exceptions would allow law enforcement officers to force a driver to submit to a blood test.
Implied Consent Laws and Driver's License Suspension
According to California law, if you refuse to submit to a DUI test, you will face a one-year license suspension regardless of the outcome of the DUI testing. You will face a longer license-suspension period if you have refused a DUI test in the past. License suspensions for refusal to undertake a DUI test are hard suspensions. This means that after your license suspension, you will not be able to apply for a limited driving permit. If you are under the age of 21 years and you commit a first-time offense of refusing to submit to a DUI test, you will face a license suspension for one year. If you commit a second violation of implied consent laws and you are below the age of 21 years, you will face license revocation for two years. You will face license revocation for three years if you refuse to submit for a DUI test the third time and you below the age of 21 years. Similar license revocation periods apply for a first, second, and third violation of implied consent laws by persons above the age of 21 years.
Fighting Violation of Implied Consent Laws Charges
Any driver in California may face charges for violation of implied consent laws. Implied consent laws apply to all motorists in California. The laws apply to all California state residents that hold a California state driver's license. The implied consent laws also apply to all non-California residents who hold an out-of-state license. Therefore, even if you are from another state other than California, you may still face charges for violating implied consent laws.
If you are facing charges for violating implied consent laws, you can fight the charges with the help of an attorney. You may assert that your arrest was not lawful. For an officer to arrest you in California, the officer is supposed to have a probable cause. If the officer did not have probable cause for arresting you, you might assert that the arrest was unlawful. As long as your arrest was unlawful, you can assert that you did not give implied consent for a breath test. If this defense works, the court may dismiss your entire driving under the influence case.
Reasonable Suspicion of a DUI Stop
The police must have probable cause for stopping your vehicle on suspicion of DUI. How can the police suspect that you are under the influence? The police will observe your vehicle and look out for erratic driving behavior. Erratic driving behavior may include making illegal turns on the road and straddling the centerline. The police may also have reasonable suspicion for DUI if you are swaying from one lane to the other while driving and nearly hitting other vehicles and objects on the roadside. The defense of a lack of probable cause may not stand if the court proves that the police had reasonable suspicion for making a DUI stop.
Contact a DUI Defense Attorney Near Me
Many people do not fully understand the implied consent laws and the implications of breaking the law. Violating implied consent laws may impose detrimental penalties on you, and it is important to seek legal counsel. If you are facing charges for violation of implied consent laws, contact Van Nuys DUI Attorney at 818-253-1913.