The Implied Consent Law
Implied consent laws are a key concept in traffic law, particularly in the enforcement of DUI/DWI cases. These laws refer to the implied agreement by drivers that they will consent to chemical testing to determine blood alcohol or drug content in their systems if they are pulled over by law enforcement officers.
While there may be slight variations between the state laws governing these implied consent statutes, they essentially require that a motorist allows for blood tests to take place if they are requested by an officer who has reasonable cause to suspect that person has been driving under the influence of alcohol or drugs.
Officers should be well-versed in their state laws , and many motor vehicles already have forms in the glove compartments that describe the laws. However, it is still essential for anyone who has been arrested on suspicion of DUI to understand the responses that are required of them when asked to participate in chemical testing, as well as the consequences of refusing to do so.
In some states, refusal to take the tests may result in the loss of a license for a specified period for first-time offenders, and longer for repeat offenders.
Any drivers who have been pulled over on suspicion of drunk driving should speak with an attorney as soon as possible to understand their rights and obligations when it comes to consent laws.
The Elements of Implied Consent Laws
Implied consent laws are designed with the goal of increasing the likelihood that a driver will submit to a chemical test when requested by an officer. For the purposes of DUI law, the ruling blood alcohol concentration (BAC) over which an officer might request a chemical test is 0.08 percent. If a driver submits to a chemical test and the BAC reading is at or over this limit, then it is an automatic presumption of intoxication and the penalties for the DUI offense will be severe.
However, taking a chemical test—a breath, blood or urine test—does not always guarantee a conviction. There are many defenses an experienced DUI lawyer might employ to fight a DUI case and having submitted to a test may not prevent them from being used in your defense.
Many of the elements of these laws are similar among the states, but there are differences present as well. For example, most statutes contain language obligating the driver to submit to a chemical test, and that it must be provided in a promptly, lawful manner. Any test that is not conducted in accordance with the law, such as when a driver is coerced into taking a test, is inadmissible in a court.
States differ as to whether the chemical tests offered are breath tests, blood tests or urine tests, but administering officers should follow a systematic approach of offering drivers chemical testing options. It is only after they have administered each of these tests that they can insist upon one, and a driver’s refusal to submit to this single test can be all that is needed to sustain a DUI charge.
Violations of Implied Consent Laws
A few events that constitute a violation of the implied consent law include:
- . Refusing to share a breath sample
- . Leaving a breath test site before a sample is obtained
- . Being physically unable to provide a breath sample
- . Providing a breath sample and then leaving the test site
- . Providing inadequate breath sample
- . Disconnecting or interfering with an evidential breath test instrument
Refusing to Submit to Testing
A driver’s first act could begin a snowball effect for the rest of the implied consent process. The implied consent process begins when a driver refuses to submit to a chemical test for the first time. Subsequent refusals and new charges are treated more harshly.
Scenario #1: . A police officer pulls over a driver for a DUI. Upon request, the driver refuses to provide a breath test.
Scenario #2: . A police officer pulls over a driver for DUI. Upon request, the driver submits to a breath test. Then, the driver refuses to get into the police officer’s car for transport to the testing facility.
In Order to Avoid a Violation
Drivers should submit to the breath test at the request of the officer. Then, it is up to the officer to follow through appropriately.
Physical Inability to Provide a Breath Sample
The implied consent law also allows for exceptions to a breath sample refusal or withdrawal. If a driver is physically unable to provide a breath sample, he or she may ask for a substitute, like a blood draw, in order to comply with implied consent.
Scenario #3: . A police officer pulls over a driver for a DUI. Upon request, the driver submits to a breath test. After the first breath test attempt, the driver passes out and is unable to provide a breath sample. The driver requests a blood draw as a substitute.
Since this driver has not violated implied consent laws, the police officer must honor the request for a blood test.
Excessively Weak Breath Samples
Implied consent law in Washington, D.C. also deals with situations when a driver submits excessively weak breath samples. If a breath testing machine receives samples that are weaker than legally accepted levels during three attempts, it could be an indication that the driver has a medical condition preventing him or her from providing an adequate sample or that the samples are tainted with alcohol because the driver has been drinking prior to the test. In these cases, it is up to the police officer to determine whether a blood test should be offered or if the driver should forfeit his or her right to a blood test.
Scenario #4: . A police officer pulls over a driver for a DUI. Upon request, the driver submits to a breath test. After the first breath test attempt, the reading turns out to be lower than the legal limit. The driver submits to a second breath test which reveals yet another low reading. The driver submits to a third test and results are still too low to be used in court.
In this case, the driver still complied with implied consent rules even though the samples were too weak to be used in court.
Consequences of Implied Consent Violations
The legal consequences related to an implied consent violation vary based on the specific facts of the situation, including the severity of a driving offense and past crime history. Generally, an implied consent violation will result in at least 1 year of driver’s license suspension. If the individual contests the charges, they will be extended for an additional year. In addition to losing your license for up to two years, those who violate implied consent laws face a minimum $500 fine. Those who are convicted of refusing to provide a breath or blood sample face an added three-month jail sentence for each of the two possible offenses. For driving under the influence, those who refuse to take a breath or blood test can be hit with a minimum of 18 non-concurrent months in jail. This is all in addition to a possible DUI murder charge. If you lose your driver’s license, a hearing may still be held to determine the validity of the arrest. If the individual loses the hearing, they can then have a hearing to determine whether the initial arrest was valid. Driving under the influence or a DUI murder conviction often results in losing driving privileges, mandatory community service, rehabilitation and substance abuse classes, probation and fines.
Fighting Implied Consent Violations
Defending Against Violations of Implied Consent Law
Depending on the circumstances, an alleged violator of the implied consent law may have several avenues of defense. An experienced lawyer can begin building a defense by analyzing the factual details of the case and the police officer’s conduct in accordance with the implied consent statute. If a breath test was administered, for example, it may be possible to exclude the test results if they were not properly obtained in accordance with the law. An experienced attorney will know the rules, regulations , and case law applicable to each possible defense and how to best apply them to the case at hand.
An officer’s failure to follow the implied consent law is a common defense strategy, and this strategy can be used when the violation of the law has an impact on the case, such as the improper admittance of evidence at trial. Other possible defenses include challenging the legality of the officer’s detention (i.e., the officer did not have a legal cause to stop the motorist in the first place) or by arguing that the person was not properly given time to consider their options prior to submitting to testing.
Case Examples and Legal Authorities
Violations of implied consent law have been a source of considerable litigation in New Jersey and have resulted in myriad published cases providing guidance on how these laws are to be interpreted. In State v. Tyler, 252 N.J. Super 323 (App. Div.1978) the Court held that the police officer’s failure to follow the required protocol precluded the admissibility of the breath results. The breath test result was deemed inadmissible and the Court reversed the conviction. By contrast, in State v. Maloney, 204 N.J.Super 66 (App.Div.1985) the Court concluded that the vestiges of the protocol were satisfied and in light of same the error was harmless. These two cases are representative of the polar opposites for implied consent law violations. A middle ground is to consider the significance of the impairment and/or the level of intoxication when analyzing categories of implied consent violations. In State v. Bradley, 247 NJ Super 262 (App Div. 1991) for example, the Court determined that the one minute delay involving production of the breath sample from the "deep lung air" was not significant because the difference would not have changed the reading of the breathalyzer machine. The miscalibrated simulator case is not the same. The simulator must be calibrated to 100%. At .093 an accused may be no higher than .097. The deviation from .097 is too great and thus suppression of the breath result was required. At .096 the court concluded that the use of the .093 standard had the opposite effect of lowering the breath reading by 0.0016%. The New Jersey Supreme Court concluded that the police will be held to the strictest standards and thus some inadvertent errors shall invalidate the results. As noted in previous Blog posts, the New Jersey legislature is currently reviewing other statutes that may require revision because of the strict construction afforded to these statutes by the New Jersey Courts.
The Future of Implied Consent Laws
As we look to the future, a few key pieces are worth considering. First, how do we keep up with technology? As technology advances, so too do the legal challenges and cover-ups that follow. We have seen greater use of body cameras, which increases the amount of video evidence available in an implicit consent case. Video corroborating or contradicting police testimony relating to impairment undermines the government’s ability to prove breath, blood or urine samples were collected by someone who had authority to obtain the sample. Video evidence may corroborate claims of false arrest or abuse. As technology continues to develop, and the average citizen becomes both more capable of accessing the technology and more aware that it is critical to document and report incidents of law enforcement’s improper conduct, the prevailing evidentiary issues may change.
Second, how do we keep pace with legislative changes? Recent legislative changes include a bill expanding implied consent laws to include marijuana and marijuana concentrates. The bill, now law as T.C.A . §55-10-406(b)(2) and (b)(3), includes a law enforcement officer’s ability to "request a sample of blood from a person in one (1) of the following categories: (A) The person is driving or operating a motor vehicle . . . . (B) The person is operating a motor vehicle . . . and the officer has probable cause that the person was driving or operating the motor vehicle . . ." Whether the inclusion of marijuana and marijuana metabolites disintegrates the dichotomy that maintained the exclusion of marijuana from implied consent laws as requested in current intensive DUI cases by the government — how are blood and breath tests treated differently at the preliminary phase? How does it impact the exclusion of a veteran’s use of hemp and cannabis oil? What happens when the testing fails? These are all questions that require answers as law and practice develops and addresses what will be an evolving area of evidence and legal disputes, and will require specialized expertise. Without special training, a clear and concise understanding of these nuances is impossible.