All U.S. states and territories (including Washington D.C.) have what are known as “implied consent laws.” New York was the first state to enact such laws—in 1953. By 1972, every state and territory had implied consent statutes on the books.
“Implied consent” refers to an implicit agreement each driver makes by getting behind the wheel—that the driver will take a chemical test where appropriate. Implied consent laws generally require that drivers lawfully arrested for driving under the influence (DUI) submit to chemical testing when asked or instructed to do so by an officer. The purpose of this testing—usually the test is of the driver’s breath or blood—is to measure the amount of alcohol (and sometimes drugs) in the driver’s blood.
Implied Consent: Before and After
Before implied consent laws, a huge portion of drivers stopped for DUIs simply refused to take a chemical test. Because there weren’t any consequences for refusal, drivers had nothing to gain and lots to lose by submitting to chemical testing. Of course, without chemical test results, prosecutors were having trouble getting convictions in DUI cases.
(For more on what the prosecution must prove in a DUI case, see What Does the Prosecution Have to Prove in a DUI Case?)
Since the creation of implied consent laws, drivers who refuse chemical testing typically face penalties that can include:
- license suspension
- fines, and
- having to install ignition interlock devices (IIDs) in their cars.
These penalties are most often in addition to any penalties imposed for a DUI conviction. Suppose, for example, you’re convicted of DUI in a case where you also refused chemical testing. Your license might be suspended for six months for the DUI conviction and an additional six months for the refusal—a total of 12 months.
Some states even make refusal a separate crime. That means, for instance, that someone could be convicted of both drunk driving and refusing to take a chemical test. Or a driver could be acquitted of DUI but convicted of refusal. However, in 2016, the U.S. Supreme Court held that laws criminalizing refusal to take a blood test were unconstitutional. But the Court did say that it's generally okay for a law to criminalize refusing to submit to a breath test. (To read more about the Supreme Court's decision, see DUI Testing: Breath, Blood, and Warrants.)
And if you’re charged with DUI after refusing chemical testing, the prosecution will likely be allowed to use your refusal against you at trial. In other words, the judge or jury will be told that you refused to submit to testing.
However, even with evidence of your refusal, it’s often more difficult for the prosecution to prove a DUI case where the driver refused chemical testing. That’s because there isn’t definitive evidence of the driver’s level of impairment. On the other hand, the absence of this evidence doesn’t necessarily mean refusal is a good idea. Many attorneys advise against refusal as a strategy for beating a DUI.
(For more on this topic, read our article on the experiences and case outcomes of drivers who refused chemical testing in DUI cases.)
Choosing the Chemical Test
Although there are lots of bodily substances that can be tested for blood alcohol concentration (BAC) and drugs, state laws often limit the options to:
- breath, and
These laws require that drivers provide one of the above for BAC testing.
In Texas, New York, and many other states, the arresting officer gets to choose the chemical test to use. In a number of other states, the driver gets to decide which test to take. Florida law, for instance, generally gives drivers suspected of drinking and driving a choice between blood, breath, or urine. And California drivers have two options: blood or breath. (Tex. Transp. Code Ann. § 522.102 (2015); N.Y. Veh. & Traf. Law § 1194 (2016); Fla. Stat. Ann. § 316.1932 (2016); Cal. Veh. Code § 23612 (2016).)
In states where the arresting officer gets to select the chemical test, it’s considered refusal when the driver refuses to take the chemical test selected by the officer. But in states where drivers get to choose, it’s typically not considered refusal unless the arresting officer first presents all the chemical test options. For example, a California driver’s license normally can’t be suspended for refusal if the officer tells the driver the only option is a blood test—the officer must give the driver a choice between blood and breath. (See People v. Brannon, 32 Cal.App.3d 971 (1973).)
(To learn about the differences between the chemical tests discussed in this article and roadside pre-arrest preliminary alcohol screening (PAS) breath tests, see What is a Preliminary Alcohol Screening (PAS) Test?.)
Implied Consent Advisements
Generally, you can’t be penalized for refusing a chemical test unless the arresting officer first tells you what the consequences of your refusal will be. This warning is often called an “implied consent advisement.”
As to the specifics of what an officer must explain when giving an implied consent advisement, state laws vary. In Georgia, for example, there’s a script that officers are supposed to read to DUI suspects. The script says, in part:
- that drivers are obligated to submit to chemical testing
- that if they refuse testing, their licenses will be suspended for at least one year, and
- that refusal can be used against them at trial.
(See Ga. Code Ann. § 40-5-67.1 (2015).) In South Carolina, officers are required to give suspects implied consent warnings—which include an explanation of the suspect’s rights and the specific consequences of refusal—orally and in writing. (S.C. Code Ann. § 56-5-2950.)
In other states, a more general advisement is all that’s required. For instance, Montana’s implied consent laws don’t require officers to inform drivers of the specific ramifications of refusal. Montana officers have to advise a driver only that refusal has potentially serious consequences, and that the driver has certain procedural rights such as the right to have an independent blood test done and to appeal a license suspension. (State v. Simmons, 303 Mont. 60 (2000).)
(Read more about implied consent advisements in our article, Do Police Have to Give Implied Consent Advisements in the Suspect’s Preferred Language?)
Questions for Your Attorney
- If I refuse chemical testing, can police use physical force to take my blood?
- If I have hemophilia or a similar medical condition, do I have to submit to a blood test?
- Can I get a restricted license to driver to and from work after getting my license suspended for refusal?
- Is refusal a crime in my state?