“Implied Consent” is a type of legal consent which is not expressed by a person, but rather inferred from the situation or otherwise imputed on the person by law. For example, if a person is unable to consent to a doctor working on them because they are incapacitated, the doctor may be able to perform services because if the person could consent, they most likely would.
Implied consent more commonly appears in the context of drunk driving and DUI laws. Most states have some sort of law stating that any person who drives an automobile consents to chemical testing after being stopped or arrested for driving under the influence.
In California, it is implied that the license holder has given their consent to a breath test to measure their blood alcohol content (BAC) upon being arrested for a DUI. It is important to keep in mind that implied consent laws only apply to chemical testing required after the DUI arrest. This means that a person can refuse to take a roadside breath test before being arrested.
Consequences for refusing to submit to a chemical test after an arrest are severe in the state of California. The penalties for refusal (known as “refusal enhancement penalties”) will be levied on top of standard DUI penalties. Refusal enhancement penalties may include:
- First-time DUI offense: Driver’s license suspention for 1 year, with possible jail time up to 48 hours and 9 months of alcohol education courses.
- Second-time DUI offense: Driver’s license suspension for 2 years, with possible jail time up to 96 hours
- Third-time DUI offense: Driver’s license suspension for 3 years, with possible jail time up to 10 days
It is worth noting that failing to submit to a test can result in charges for both the DUI as well as the refusal. Failing to complete a blood alcohol content test can also result in charges, for instance, purposely not blowing hard enough into the breathalyzer.
To avoid confusion, you should be aware that implied consent is a general legal concept and has many other applications besides DUI arrests. For example, implied consent is also used in the following situations:
- Court procedures: In court, parties have a right to object to the introduction of an item of evidence. If the party fails to make an objection in a timely manner, they have impliedly waived their right to object.
- First Aid: Many jurisdictions have laws allowing health care professions to assume implied consent to treat a person who is critically injured but unable to respond.
These applications of the implied consent will vary from state to state. Check with a lawyer if you feel that any of these situations applies to you.
Disputes involving implied consent can be complicated. By their nature, they require an analysis of the person’s actions to determine whether they actually consented. In a criminal law context, if you have refused a chemical test after a DUI arrest you should contact a local California lawyer immediately. A DUI lawyer can explain your course of action and represent you vigorously in a court of law.