Implied Consent Defense

If stopped on suspicion of driving under the influence, an officer may read you an ‘implied consent notice’ and ask that you submit to a breath, urine, or blood test. A breath test can be conducted roadside or at a detention facility; urine and blood tests may only be administered at a detention facility or a medical facility. In some states it is the driver’s choice as to which test to take, but usually the officer chooses the testing method. The driver can then request a second test of any type to validate the results.

Consult A DUI Attorney To Build Your Defense

If you are arrested for DUI, your attorney is likely to vigorously defend your case through challenging the implied consent laws effective in the location in which you were arrested. If you could get the advice of a defense attorney at the time you are arrested, that advice would most likely be that you politely decline to take any chemical tests to determine your BAC if you are in fact intoxicated. However, it is important to understand that there are penalties for refusing to do so. It would be in your best interests to have an attorney help you through the resulting charges.

In all states, when you apply for your driver’s license you agree through your signature on the forms that you will comply with a law enforcement officer’s request to submit to a breath, urine, or blood test to determine if you are intoxicated. Many defense attorneys argue that it is not a privilege to hold a driver’s license, but a necessary part of leading a normal, productive life. They believe that it is unreasonable to put such restrictions in the license application because your only recourse is to refuse to sign the application – which means you do not get a driver’s license and cannot function easily in today’s society. Also, most defense attorneys believe it is against your fifth amendment rights to force you to be a witness against yourself, which is essentially what you are doing if you are intoxicated and submit to any BAC tests.

Individual State Policies Regarding Implied Consent

The law’s position is that driving is a privilege, not a right, and that it is reasonable to expect a driver to operate a motor vehicle in accordance with the laws of that county and state. It is true, however, that federal funding is available to states that impose DUI prevention measures. Therefore, it is in the states’ best financial interests to comply with the government’s suggested programs and to strongly enforce implied consent laws.

In some states reading an implied consent notice is unnecessary to the legality of the proceedings. If a warning by the officer through reading the implied consent notice is required in the state or county in which you are stopped, your defense attorney has strong grounds for dismissal of your charges.

Representation by counsel is another point against implied consent laws that is argued by defense attorneys. Your sixth amendment rights protect you by allowing you to request legal representation in a criminal proceeding. However, the US Supreme Court ruled that this does not apply in implied consent situations, which they refuse to view as a ‘criminal proceeding’ unless the results actually incriminate the driver. As it is impossible for the driver to know the outcome of the chemical test in advance, the argument is that it is unreasonable to punish a driver for refusing the chemical tests.