Most drivers in the state of California already know the serious repercussions of drunk driving. State laws are apparent on the penalties a person can face if they are found guilty of drunk driving. For that reason, motorists will do their best to avoid getting caught in the act. However, there are many cases of drunk driving, which makes it mandatory for drivers to submit to a chemical BAC test if they are stopped on suspicion of driving under the influence.

After arrest, the police need evidence they can present before the court to prove that the motorist was driving under the influence. That is why the state has implied consent laws, to make things easy for the police to gather the evidence they need. Violating these laws is a grave offense that could see you facing hefty penalties, including license suspension. These are some of the violations we handle at San Jose DUI Attorney Law Firm. You can get in touch with us if you are being charged for failing to submit to DUI testing for legal representation.

Understanding California Implied Consent Law

When the police stop a motorist on suspicion of drunk driving, there are tell-tale signs they must have seen in the driver to suggest that he/she could be operating under the influence. However, these signs are not enough to warrant an arrest. The police will, therefore, ask the driver to yield to DUI testing to determine the amount of alcohol in his/her blood. The problem is that not every driver will willingly agree to submit to the screening. The driver can refuse to provide a breath sample, and when this happens, the police cannot force him/her to blow into the breathalyzer.

It is a common problem that the police face with most motorists, especially on DUI checkpoints. DUI motorists know that by refusing to give a breath sample, the police will not have enough evidence to charge them with drunk driving. DUI defense attorneys also enjoy more leverage whenever they are representing clients in the absence of their BAC results. While this may seem like an excellent strategy to avoid facing the consequences of drunk driving, it is good to note that refusing to submit to DUI testing is an offense in itself. The crime comes with a series of penalties, such as enhanced DUI penalties and suspension or revocation of the driver's license.

Implied Consent is a kind of legal Consent that is not usually expressed by the person, but inferred from their situation. Implied Consent Law makes it obligatory for motorists in the state of California, who have been legally arrested for drunk driving, to agree to a DUI breath testing to determine their BAC. The blood alcohol level (BAC) is the measure of the amount of alcohol in the driver's blood. This concentration is usually represented as a percentage. The legal BAC limit for adults in the state is 0.08%. A higher percentage will mean that the person has more alcohol in their system, and a lower rate will show that they have less alcohol in their bloodstream.

DUI testing is required as a way for the police to prove or dispute their suspicion that a particular motorist is operating under the influence. Refusing to submit to the test means that the motorist has violated this law, and this comes with a new set of penalties, which may include:

  • More sentences on op of those that you get for a standard DUI offense
  • A mandatory suspension of the driver’s license. Note that this is independent of the result of the driver’s DUI case. The driver could still face the suspension even if the court has not found him/her guilty of DUI

Implied Consent law in California applies to both DUI blood and breath tests. However, there was a suggestion from the state’s Supreme Court that no one should be punished for failing to participate in DUI blood testing in situations where California police have no warrant for the same. Again, these laws only apply after a lawful DUI arrest if the driver has not been arrested yet, or some circumstances suggest that the arrest is not legal, the driver will not be found guilty of violating the implied consent laws.

What Is Considered a Legal Arrest in California?

As mentioned above, a driver can only be expected to consent to DUI testing after a legal arrest. Being stopped and questioned by the police does not automatically mean that the person is under arrest. Until the person is formally detained or arrested by the police, they can still walk away after the questioning. If you try to walk away and the police stop you, an arrest might have already taken place. You can always dispute the arrest if you feel that it was not legally made. What then constitutes a legal arrest?

There must be a credible cause for arrest. In a DUI case, many signs might imply intoxication. Some of these are:

  • Driving recklessly on the road
  • The motorist’s speech is slurred when speaking to the police
  • He/she has watery, blood-shot eyes
  • There is the smell of alcohol all-over the person
  • The person is giving conflicting information about where they have been
  • The person is falling over while standing
  • He/she is stumbling when asked to step out of the car
  • Is giving slow verbal responses to the officer’s questions

These are some of the indications that the person might be intoxicated and a good reason for the officer to arrest them.

The Fourth Amendment of the United States Constitution requires police officers to have probable cause to arrest the arrest to be considered legal. The idea behind this is to prevent officers from stopping people for no valid reasons, especially people they do not like as undesirable or those that look threatening even in the absence of justification. Note that the judge has the final say on whether the officer had a credible cause for arresting the motorist or not. If, after the arrest, the judge decides that the police did not have a probable reason for your arrest, any evidence the officer might have gathered after the arrest will not be used in court.

California Pre-Arrest Breath Testing (PAS)

When the police stop a motorist on suspicion for drunk driving, they are not arrested right away. The police need to be sure that their suspicion is correct before they can detain the driver. For that to happen, they might need to take the driver’s breath sample to test for their BAC. Note that this testing is done before the arrest, and is referred to as the Preliminary Alcohol Screening breath test. The test is conducted by the use of a hand-held device that works just the same as the standard breathalyzer.

The PAS test is a type of field sobriety testing that conducts DUI tests by the roadside. It’s as simple as trying to walk without faltering. This test helps the police to decide whether to put the motorist under arrest for DUI or not. Since the test is conducted before the arrest, the motorist has legal rights to either accept or decline the testing. Even if they refuse to submit to the PAS testing, most California drivers will not be punished for it. However, there are exceptions in this case, and penalties could be there for the following persons:

  • Drivers who are below the California drinking age of twenty-one
  • Drivers who are on probation for DUI-related conviction

If the driver is 21 years old as a minimum and is not on any DUI probation, they can refuse to take part in the PAS DUI testing. If they do so, the police cannot use their refusal as an indication of guilt in a trial. If, on the other hand, the motorist agrees to the PAS testing, the outcome of that test could be used as evidence to convict him/her of operating under the influence.

Post-Arrest DUI Testing

Other than the preliminary examination, California police conduct evidentiary testing, which is mandatory and is performed after a legal arrest. It is the testing that is covered by the implied consent law. Every driver in the state that is under suspicion of drunk driving must submit to post-arrest chemical testing. The police require the results of this test as evidence of DUI to charge the driver in court. Note that every driver is required by law to submit to this testing, regardless of whether they have taken the preliminary test or not. During this post-arrest testing, most drivers decide to either take a breath or blood test. There are exceptions here as well:

  • If the officer has enough reason to believe that the driver was operating under the effects of drugs, a breath test will not be necessary. Instead, the driver will be required to submit to a blood test
  • If the driver is unable to blow hard enough into the breathalyzer as needed, the officer could recommend blood testing
  • If the driver has lost consciousness or is dead, he/she will be unable to consent to a breath test
  • If the driver needed medical care and was referred to a medical facility that did not have a breath testing device, blood testing will be the only option remaining

As mentioned above, a post-arrest DUI test is mandatory, and every driver in the state, through implied consent laws, is expected to submit to the test.

Consequences for Declining to Submit to a DUI Breath Test After Arrest

There are two main consequences for failing to submit to a California post-arrest DUI test and violation of the implied consent law. They are:

  • The driver might lose their driving privileges for some time through suspension
  • The driver will face an enhanced sentence on top of the standard DUI sentence they are likely to get for operating under the influence

The increased penalties are given as follows:

  • First-time DUI offenders will get an additional two days of jail time plus a minimum of nine months in a court-approved DUI school. The nine-month DUI school period will be given in place of the 3-month program that is usually given to first DUI offenders whose charges do not involve violation of the implied consent law.
  • Second-time DUI will receive an extra 96 hours of jail time to the original jail sentence. These are offenders who are facing a second conviction within 10 years from the first conviction.
  • Third-time DUI offenders will receive an additional ten days of jail time. they are DUI offenders who are facing a third conviction within 10 years
  • Fourth and subsequent DUI offenders will get an extra eighteen days of jail time to the original sentence. These are DUI offenders who are facing a fourth or more DUI conviction within ten

Even with the implied consent law in place, questions emerge on whether or not it applies to chemical testing after legal DUI arrests. Initially, the law was designed to affect both post-arrest DUI blood and breath tests in the state of California. However, in the year 2016, the Supreme Court made a decision in the case of Birchfield v. North Dakota. In that case, the Supreme Court ruled that it was unconstitutional for the state of California to make it an offense for a person to refuse to submit to blood testing without a legal warrant.

This is a case that was meant to change the laws in states that made it a separate offense for a driver to refuse to submit to DUI blood testing after an arrest. The state of California is a little different as it only imposes extra penalties on drunk driving offenders who refuse to submit to DUI testing after an arrest. However, the decision is left on individual courts to choose whether or not this will be lawful and also whether the implied consent law will apply to either blood and breath tests or breath tests alone.

Conditions in Which the Police Can Ask a Person To Yield to DUI Blood Testing

As mentioned earlier, a driver can choose to have a breath or blood test after a DUI arrest. What is essential is that they have submitted to DUI testing, and an evidentiary test result has been obtained. However, a blood test is not always mandatory. There are only three circumstances under which the California police can ask a person to agree to a DUI blood test:

When the Police have a Warrant/Court Order for the Test

If the California police want you to yield to a blood test, they might obtain a legal order for it. Valid orders are usually issued out by the judge, and they give authorization to the police to conduct the exercise. Without a court order, a person can refuse to yield to blood testing without facing any penalties. It is because the law believes that drawing blood for testing is more invasive than obtaining a breath sample from a DUI suspect. If the police want a blood sample and not a breath sample, they might be required to obtain a court order for it.

When a Person is Under Suspicion for Felony DUI in California

When a person is under suspicion for felony DUI in California, the police may forcibly draw their blood to conduct a chemical test for DUI even without a warrant. The law allows the police to do so in cases where a warrant is not quickly acquired. A felony DUI offense in California is a more severe form of the standard DUI, attracting more penalties. California considers it a felony if a driver that is operating under the influence does the following:

  • Causes an accident in which another person suffered severe injuries or lost their life
  • When a driver with three or more prior DUI convictions within 10 years is arrested and charged with DUI again within the same period
  • When a driver is arrested and charged for DUI and has previously been convicted of felony DUI in the state

If you are facing arrest for drunk driving and the police have a strong reason to believe that you have injured or killed another person or you have multiple DUI convictions, they are allowed by law to take your blood sample for DUI chemical testing.

When a Driver is Under Suspicion for California DUID

California DUID occurs when a driver is operating a vehicle under the influence of drugs. DUI and DUID are both severe offenses in the state. If the police have a strong reason to believe that a driver is under the influence of drugs, conducting a breath test will not give then the DUI results they need to charge you of DUID. in that case, the driver will be required to agree to blood testing as it is the only way to know for sure whether or not the driver has drugs in his/her bloodstream.

Some of the indications the police might have to suspect a driver of DUID include:

  • Conflicting statements from the driver
  • Presence of objective signs of intoxication by drugs
  • Physical evidence that the driver was using drugs

Possible Legal Defenses for Violating Implied Consent Laws

If you have been arrested and charged with violating the implied consent laws, it is advisable to get in touch with a competent DUI defense attorney. The help of an experienced attorney will go a long way in helping you avoid facing the serious additional consequences listed above. License suspension is a severe penalty, especially for a person who depends on his/her vehicle for their day-to-day life. A suspended license for a certain period will mean that the driver will not be able to get to work, run errands, or even take care of his/her business or family. The good thing is that there are defense strategies your attorney can use to help you avoid these severe penalties.

The most common defense strategy to use in such a case is that your arrest wasn’t lawful. Remember that a person can only be found guilty of violating the implied consent law if their detention was legal. Your attorney could take advantage of this to prove to the court that your arrest wasn’t lawful. If you were randomly stopped by the police, with no probable cause, and were under arrest, you will not face a conviction for refusing to yield to DUI testing. The court will require the arresting officer to state his/her reasons for your arrest. If the probable reason for your arrest given does not satisfy the judgment, the court might drop your charges.

Note that if your arrest was not legal, then you might have a chance of also getting acquitted of any DUI charges you might be facing. California law requires the police to have a probable reason for stopping drivers before they can arrest and charge them with drunk driving. If you did not give Consent to DUI testing because you believed that your arrest was not legal, any evidence the police might have gathered against you would not be admissible in court during your DUI trial.

Who Is Affected by the California Implied Consent Law?

Note that the implied consent law in California affects all drivers operating in the state. These include:

  • All California residents who have a state driver’s license
  • All non-California residents who hold an out-of-state driver’s license

Find a San Jose DUI Attorney Law Firm Near Me

The implied consent law requires every driver in California to agree to DUI chemical testing after a legal arrest. However, if you believe that your arrest was not lawful, you may not be guilty of violating these laws. At San Jose DUI Attorney Law Firm, we have a dedicated team that is willing and ready to help California drivers facing charges for failing to yield to DUI testing. We can help prove to the court that your arrest was not lawful and that you were justified for refusing to agree to the test. Call us at 408-777-6630 if you are in San Jose, and let us take charge of your defense.