What is Implied Consent?Under the implied consent law, any person operating an automobile has consented to being chemically tested by police for a DUI when they signed their drivers license. Most states have passed the law that says if you are driving an automobile, you have already given your implied consent to take a chemical test to find out if you are driving under the influence of drugs or alcohol.
How is the Implied Consent Law Applied?
When you are stopped by police under the suspicion of DUI, you have already consented to a chemical test to determine your BAC (blood alcohol concentration). They use this information to build a DUI case against you in the event that you go to court. In most states, when you are arrested for DUI, the officer will read you the Implied Consent Notice. When he is finished, he will then ask to take a blood, urine or breath test. As the name suggests, your consent is implied, not undeniable; therefore, you can withdraw your consent. In other words, you can refuse to take their test, but if you do, the consequences are harsh.
What if I refuse a blood, breath or urine test?
State laws vary, but if you refuse to take one of the tests, you will lose your license for at least one year. The officer may still be able to get around your refusal by obtaining a court order to draw your blood and test it. If you refuse the test, if the police say you were uncooperative, or if the equipment failed and you were arrested, you have the right to request a hearing at the DMV. The purpose of this hearing is for you to ask the administrative judge at the DMV to look at the facts of your DUI case and reverse the license suspension and give you your license back. Keep in mind, depending on your state laws, you have a short time to ask for an administrative hearing. If you pass this window, you will lose your right to object and therefore lose your license. It is a good idea to consult with a DUI attorney who can help you with your states statutes.
Is the Implied Consent Law Constitutional?
The implied consent laws are controversial. DUI lawyers have argued that the Fourth Amendment guards against unreasonable searches and seizures. Another line of reasoning is that it violates the Fifth Amendment that says, No person shall be compelled in any criminal case to be a witness against himself. Fifth Amendment as well as Fourth Amendment challenges have been argued in many DUI cases with little success. At this time, most state laws say that we are to submit to DUI chemical testing if we are pulled over under the suspicion of DUI. In most cases, refusal of a DUI chemical test will make matters worse. If you have been arrested for DUI, contact a qualified DUI attorney in your county. No matter your situation, he can work with you to develop the best DUI defense for you