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Orange County, CA Criminal Defense Law Blog

Wednesday, May 14, 2014

Understanding California’s Implied Consent Law

The results of a chemical test showing a driver had a blood alcohol content (BAC) above the legal limit is one of the most common pieces of evidence used against the accused in a driving under the influence (DUI) case. California’s implied consent law, V C Section 23612, provides that the by the mere act of driving a vehicle in the state, the driver consents to blood, breath, or urine tests when suspected of DUI by law enforcement. Because consent need not be given expressly, it’s called “implied consent.”

It is important to note that the “implied consent” law applies only after a suspect is taken into custody. It does not apply to roadside breathalyzer tests, which a driver may refuse if he or she is 21 or older. The officer should indicate that this sort of field sobriety test is optional. However, the test is basically optional in name only. If the officer has other reasons for thinking the driver had been drinking, such as erratic driving or slurred speech, they can still take him or her into custody. Once in custody, the implied consent law kicks in and the officer can require that the driver submit to chemical testing, so refusing to take a field breathalyzer test is often futile.

A DUI suspect has the right to select which chemical test method they would prefer – blood or breath. If neither a blood nor a breathalyzer test is available, the suspect will be required to submit to a urine test. People taking anticoagulants for a heart condition or who have hemophilia cannot be forced to take a blood test, so if a breathalyzer is not available, they too will be required to submit to a urine test.

DUI suspects do not have the right to refuse chemical testing. In fact, refusal is actually an additional violation. The penalties for refusing to take a blood, breath, or urine test begin with a fine and a one-year suspension of the suspect’s license. If this is the suspect’s second refusal, or if the suspect already had a reckless-driving or DUI conviction within the last ten years, he or she could lose their license for two years. The penalty jumps to a three-year suspension for a third refusal or if the suspect has had more than one reckless-driving or DUI conviction within ten years. Refusal to take a chemical test can also trigger enhanced penalties should the state secure a DUI conviction. It is important to note that suspects do not have the right to consult with an attorney about whether they should comply with the state’s chemical testing requirements.

Suspects who refuse to take a chemical test despite knowing the consequences typically do so because they think without the test, the state will not be able to convict them. This is not always the case because even with no testing, the arresting officer still had to have probable cause to arrest, and that evidence may be enough to convict.

If you have been charged with a DUI, it’s imperative that you speak with an experienced criminal defense attorney immediately. With experience as both a trial prosecutor for the Riverside County District Attorney's office and a criminal defense attorney, Attorney McDonald has an intimate understanding of all local and state wide legal processes. Call 888-686-7874 to schedule your free consultation.

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Previous Posts

You Could Lose Your License For DUI Arrest, Even If Not Convicted

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Archived Posts

2014
September
August
Rapper Arrested in Orange County, California on Gun Charges
Further Changes to California’s Three Strikes Law
July
Change in California Criminal Law Likely to Reduce Deportations
Convicted Embezzler Receives Light Sentence Over Prosecution Objections
June
Lab Error in Methamphetamine Testing
New Mental Health Law Proposed After Tragedy in Isla Vista
May
Crowd Sourcing Law Enforcement - Can It Result in Criminal Charges against Innocent Parties?
Understanding California’s Implied Consent Law
April
March
The Impact of Additional Charges On a California Murder Case
"DUI" May Be a Matter of Opinion
February
Alternative Sentencing Options in the Orange County Area
Warrantless Cell Phone Data Searches: A Violation of the Fourth Amendment?
January
California Lawmaker Seeks Ban on 'Affluenza' Defense
Challenging the Accuracy of Blood Alcohol Content (BAC) Test Results
2013
December
California Supreme Court Deals a Blow to DUI Defense
Guns and Weapons Charges in Orange County
November
October
Domestic Violence in California
An Experienced Criminal Defense Attorney can Help you Through the Toughest Situations
September
California Lawmaker Supports U.S. Attorney General’s Stance on Drug Crime Reform
Irvine Murder Investigation Reopened
August
2012 “Crime in California” Report Just Released. What Does the Information Mean to Offenders?
Child Pornography and Child Molestation Charges and Sentencing
Nationwide Sting Highlights Law Enforcement Officials’ Focus on Sex Crimes
Motions: Paving the Way to Defense Victory
Sex Crime Charges in California: What Can You Expect Following a Conviction?
The New Three Strikes Law
Probation, Parole and Ankle Bracelets: What Does the Future of Electronic Monitoring Look Like?
July


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