Implied Consent Laws for Drivers

In general, states view applying for a driver’s license as “implied consent” to chemical testing for drugs and alcohol. All the police need to pull you over is reasonable suspicion that you’re breaking the law, including by driving under the influence (DUI).

During a DUI stop, the police officer will look for signs of impairment and will likely ask you to take a preliminary breath test to help determine your blood alcohol content (BAC). Then, if they make an arrest, they’ll conduct further chemical testing at the police station. This is where the more precise Breathalyzer test takes place. They also might collect urine or blood samples to confirm blood alcohol levels.

Police officers can’t force DUI suspects to take a Breathalyzer test or submit to chemical testing. But there typically are consequences for refusing, because of implied consent laws.

Here, we’ll explain how the implied consent laws work and how they impact your rights during a traffic stop. We will also discuss your right to refuse a breath or chemical test and the consequences of this refusal.

If you’re currently facing DUI charges, contact a local DUI defense attorney. They can analyze your case based on local laws and walk you through your options.

Definition of Implied Consent

Implied consent means that drivers have already agreed to future DUI testing — without explicitly giving permission at a traffic stop. Getting your driver’s license is enough to imply that you accept this agreement. You also imply that you accept the automatic legal consequences if you revoke your consent when police want to conduct a DUI test.

How Do Implied Consent Laws Work?

When you apply for a driver’s license, you consent to a Breathalyzer and other chemical tests to determine your level of impairment if arrested for driving under the influence.

You still have the right to refuse to submit to a Breathalyzer test, blood test, urine test, or other chemical test. However, there are consequences for doing so. If you refuse, the state can apply penalties such as license suspension, even if you’re not ultimately convicted of a DUI.

Implied consent laws typically apply to official chemical testing conducted after arrest, not to preliminary roadside breath tests. However, some states may have different rules, so the specific application varies by jurisdiction.

Roadside Tests vs. Post-Arrest Testing

Implied consent laws typically do not apply to field sobriety tests and preliminary breath tests during a traffic stop. There are generally no separate penalties for refusing to perform tests like the walk-and-turn.

But this doesn’t mean you can’t still be arrested. You may face additional or mandatory testing after a DUI arrest.

Roadside DUI Tests

When a law enforcement officer pulls someone over on reasonable suspicion of driving under the influence of alcohol, they usually ask the driver to submit to a portable breathalyzer test (PBT). They also might conduct other tests, such as the horizontal gaze nystagmus test.

If the portable Breathalyzer test results show that the driver’s BAC is over the legal limit of 0.08% for drivers 21 and older (0.05% in Utah), 0.04% for commercial drivers, and typically 0.00-0.02% for drivers under 21, the police can arrest them for “per se” DUI. This means the BAC level alone proves impairment under the law, regardless of how the person appears to be functioning.

Police Station DUI Tests

After the arrest, the police conduct additional tests at the station. A Breathalyzer test confirms a person’s blood alcohol content. The same is true if the police take a urine or blood sample. The higher a person’s blood alcohol concentration, the greater the risk they pose to public safety.

Officer Observations

Alcohol testing isn’t the only way to determine if a driver is intoxicated. Law enforcement has several ways to gauge impaired driving. For example, they can look to see if the driver exhibits any other signs of intoxication.

Some of the signs that a person is under the influence of drugs or alcohol include:

• Odor of alcohol or drugs
• Bloodshot eyes
• Slurred speech
• Unsteady gait
• Open container of alcohol
• Presence of drugs or drug paraphernalia
• Abnormal sweating

Even if the person’s BAC is not over the legal limit, the police may still have probable cause for a DUI arrest. State DUI laws generally focused on impairment, rather than BAC alone. If someone is below the legal limit but there’s other evidence they’re impaired by drugs or alcohol, they can still face a DUI charge.

Testing After Refusal

Refusing the initial breath test also doesn’t guarantee you won’t be tested. In some jurisdictions, if a person refuses to take a Breathalyzer test, police may seek a search warrant to obtain a blood sample, particularly in cases involving serious injury or death.

Why Would Someone Refuse the Breathalyzer Test?

According to the National Highway Traffic Safety Administration (NHTSA), more than 20% of drunk driving suspects in the U.S. refuse to take a breath test or blood test.

If someone has not been drinking, they will usually submit to the test, knowing the results will prove they’re sober.

However, if someone has been drinking a great deal, they know that taking a breathalyzer test will result in their arrest. They might figure their best chances of avoiding arrest or conviction for DUI are to refuse the breathalyzer test or other chemical test. They understand that there are consequences of refusal, but they’d rather deal with those penalties than hand the arresting officer proof that they are, in fact, intoxicated.

The refusal itself is usually not a criminal offense, though some states may impose additional criminal penalties if you’re convicted of DUI and also refused testing.

For example, in most states, motorists must immediately surrender their driver’s license when they refuse a breath test. This is an administrative (civil) penalty because the state Department of Motor Vehicles is the entity requiring that the officer confiscate the driver’s license. It is also the entity that issues the driver’s license suspension or license revocation.

Depending on where you live, you may face additional fines and possible jail time. Many states impose enhanced penalties for test refusal if you have prior DUI convictions, such as longer license suspensions or higher fines. The specific penalties depend on your state’s DUI statutes.

Penalties for Refusing a Breathalyzer Test

The penalties for refusing a Breathalyzer test vary by state. A motorist who refuses a Breathalyzer test will typically face a driver’s license suspension and fines. They will also have to pay to reinstate their license when the suspension ends.

Administrative penalties for refusing the test are automatic and separate from court proceedings for a criminal DUI charge.

Below are a few examples of state DUI laws regarding Breathalyzer test refusal:

California 

Refusing a breath test in California will result in a more severe penalty if the state convicts you of DUI. A refusal also carries a mandatory driver’s license suspension, regardless of whether the judge or jury finds you guilty.

Plus, the prosecutor can tell the jury that you refused the breathalyzer, which may increase the chance of a conviction.

The penalties for a defendant with no prior DUI convictions include 48 hours in jail, a $125 fine, a one-year driver’s license suspension, and six extra months of DUI school.

New York

Refusing a breathalyzer or chemical test is a civil offense in New York. If you refuse the test, you’ll face a fine of up to $500, an automatic six-month to one-year driver’s license suspension, and administrative fees of at least $350.

In addition, the prosecutor can mention your refusal in court if your DUI case goes to trial.

Massachusetts

Refusing a breath, blood, or urine test in Massachusetts will result in an automatic six-month license suspension for first-time offenders. For drivers with a prior DUI conviction, the suspension is much longer.

One thing unique about Massachusetts’ law is that the state cannot use your refusal against you in court.

Do Implied Consent Laws Apply on Private Property?

Many state DUI laws refer to “public roads.” This means that, in some states, if you are on private property, your state’s implied consent laws may not apply. This doesn’t mean the arresting officer cannot ask you to submit to these tests. But it may affect the penalties for refusing the tests.

There are also circumstances where you can still be arrested for a DUI on private property. The application of DUI and implied consent laws on private property varies dramatically by state. While some states limit DUI enforcement to public roads, others apply these laws regardless of location. Never assume you’re exempt from DUI laws simply because you’re on private property.

Learn More About Implied Consent Laws from a DUI Attorney

When it comes to a BAC test, only you know whether it’s best to take it or refuse it. It depends on how much alcohol you’ve drunk and whether you think you’ll blow above the legal limit.

In some cases, taking a breath test will all but guarantee a DUI charge. On the other hand, the penalties for refusing the test are severe.

If the police pulled you over for suspected DUI and you refused the Breathalyzer test, you should talk to a local DUI attorney about the admissibility of your refusal. It can make all the difference in whether the state convicts you of drunk driving.

A criminal defense attorney can help you fight the criminal charges and address any DUI penalties you may be facing, including the loss of driving privileges. Getting legal advice can greatly increase your chances of a better outcome.