Purpose of Implied Consent Statute
The primary purpose of the implied consent laws is to prevent drunk driving. Implied consent laws were enacted in every state to encourage DUI offenders to submit to chemical tests, which are typically breathalyzer tests. The theory behind the laws is that a driver with an impaired mind will be more likely to agree to take the test if it is required by law for them to submit to it. The hope is that they will be too impaired to make a decision to refuse based on possible legal consequences.
The existence of the implied consent statute is published on the back of every driver’s license in most states, along with a statement from the state that driving is equivalent to consent to a chemical test .
Drivers who refuse to submit to a chemical test after being arrested for DUI face civil penalties and losing their driver’s licenses. Some states impose fines or suspension of the offender’s driver’s license. Depending on the number of times an offender refuses to take the test, civil penalties ultimately increase.
Though thousands of suspected drunk drivers refuse to submit to chemical tests each year, research has shown that the tests are 78 percent successful. The statistics imply that implied consent laws are working to deter drunk drivers and ensuring their arrest.
Function of Implied Consent Statute
Implied consent laws are generally designed to deter individuals from breaking the law by driving under the influence of alcohol or illicit drugs. Although specific state laws may differ in some respects, the basics of implied consent laws are essentially the same nationwide. Implied consent laws state that a person will be deemed to have consented to certain tests if they decide to operate a motor vehicle on public roads and highways. In other words, if a person decides to get behind the wheel of a car, under implied consent laws they have already given their consent to be tested for blood alcohol content (BAC), or to be tested using a breathalyzer or a blood test.
In most cases, the penalties for refusing to take a BAC or breathalyzer test are pretty severe. In fact, many states impose these penalties regardless of whether or not the driver has previously been convicted of a DUI offense. For instance, under the implied consent laws in California, for first-time offenders who refuse to take a BAC or breathalyzer test, there is an automatic suspension of their driver’s license for one year. In addition, the driver may face drunk driving charges if they fail a chemical test (meaning their BAC is .08% or higher). These penalties will apply regardless of whether or not the person is convicted of DUI. The other type of test is the blood test which is carried out with a specific needle and is done by a medical professional. The blood test is normally requested upon the request or demand of a peace officer. Failure to submit to the blood test will cause the same suspension of the driver’s license as will occur in the case where a refusal to submit to the breathalyzer or BAC breath tests are taken.
If a driver refuses to be tested, they will still have to pay for the drunk driving charges. Those charges may include:
● A minimum fine means for a DUI conviction
● Penalties for refusal to take a breath or blood test
● A special surcharge for drunk driving conviction
● Increased insurance rates
● Additional costs for hiring a lawyer to defend against the DUI charges
● Loss of income due to time off from work
Drivers who refuse to submit to a breathalyzer or BAC test may find that their insurance companies refuse to extend any further coverage because the drivers were committing a criminal act when the accident occurred. In that case, the driver is not only out of a job, but may also be without a vehicle or insurance.
Consequence of Chemical Test Refusal
Under implied consent laws, it’s a violation to refuse a chemical test requested by a law enforcement officer. For individuals who refuse to provide breath or chemical samples when requested, the legal ramifications can be severe.
By refusing a breath test, a driver may face the following consequences:
In addition to administrative penalties, drivers who refuse a chemical test may face criminal penalties. In most states, a refusal to provide a breath or chemical sample can be used against the driver in court as evidence of intoxication. This evidence, coupled with other evidence like erratic driving behavior, may result in a conviction for driving under the influence or drunk driving.
Drivers should keep in mind that the penalties for refusing a chemical test often exceed those faced when submitting to a chemical test and subsequently failing it. High fines, mandatory sentencing requirements, and license suspensions come standard with refusals.
Some drivers face increased penalties for repeat refusals of chemical tests. This can occur even if the driver has never been convicted of a crime. Drivers with prior refusals on their record may face consecutive suspensions of driving privileges.
Drivers who license has been suspended under implied consent laws need to reinstate their licenses through their state’s Department of Motor Vehicles. In some states, drivers may also need to complete an alcohol treatment program, public service, or DUI counseling in order to have their driving privileges restored.
Variations of Implied Consent Statute
Though there is a standard format for implied consent laws, some states have opted out of the BAC testing option altogether and instead require their officers to ask for blood or a breath test without providing an alternative. In these cases, the law does not state that a driver may submit to a breath test or that they may provide blood or other forms of specimen.
Nevada does not currently impose implied consent laws on their drivers. Lawmakers in the state have introduced implied consent measures over the years, though none have been passed into law. This means that if a driver were to be pulled over for suspicion of driving under the influence , there would be no legal requirement for them to submit to a BAC test or provide a blood specimen.
Some states have differing standards for BAC test admissibility than others. For example, in Pennsylvania, breath test results are inadmissible due to issues with the means by which the test is administered, while in other states, such as the District of Columbia, this standard has been ruled out by their courts entirely.
Even states that do have a BAC testing option, such as California, may see major variations in these laws at the municipality level. For example, San Francisco imposes a shorter suspension of driving privileges for refusing a BAC test than the rest of the state does.
Legal Challenges and Defenses
The challenge to the imposition of the penalty for the violation of implied consent begins with the proposition that the statute is a penal statute, and that the statute is not constitutional or otherwise, when it is imposed by a criminal process, a civil standard, or both. This challenge is lodged against the statute and against the jurisdiction where the violation occurs. In Jones v. State, the defendant was convicted of a Georgia DUI. He appealed his sentence that involved an alcohol abuse treatment program. He contended that it was not authorized as a condition of probation because there was no statute at the time of his conviction establishing it as a part of probation. The Court of Appeals affirmed. The defendant was charged with DUI three times over fifteen years. The third arrest occurred April 24, 2004. Eleven months later he was sentenced. The defendant had admitted that this arrest was four months after he had run his previous DUI conviction through the United States Air Force. He contended this record supported a distinction between the criminal offense of DUI and the civil administrative penalty imposed under the implied consent statute. He contended that the imposition of the penalty constituted an ex post facto penalty. In other words, the penalty must be governed by the law in effect at the time of his arrest. The defendant argued that the enforcement of the Implied Consent Law through the criminal process rested on the premise that the penalty for refusing to comply with it was the same as the penalty for the criminal offense of DUI-which is absurd. It is apparent that the offense is separate and apart from the civil remedy for the refusal to submit to the chemical test. The defendant attempted to attack the use of the implied consent violations on several grounds. First, he argued that the statute is penal in nature. The imposition of the civil sanction was intended to be a separate penal sanction from the criminal sanction. The problem here is it is articulated in two different contexts. The imposition of the penalty for the violation is not a criminal offense. The offense is refusing the chemical test; a civil sanction is leveled. As such it is not punitive, but remedial. When the statute is applied, it applies to the civil penalty, solely, and not criminally. The criminal offense is defined under OCGA 40-6-391. The penalty for that violation is defined under OCGA 17-10-1. The problem here is that it is not criminally enforced; it is not enforced at all. The whole intent is to make the driver or violator lose his license. The importance of this is the criminal sanction from the statute in effect in April of 2004 would have added an additional 20 days to the penalty beyond what was applied in this case, if the statute had not been challenged.
Impact on Driver Behavior and Public Policy
Beyond their procedural applications, implied consent laws are intended to deter drivers from drinking and driving. In this respect, they have undoubtedly had some effect. For example, Utah’s alcohol-related fatality rate has dropped from one of the highest in the country to one of the lowest, even though it has not made drunk driving illegal in every instance—indeed, it is arguably the most lenient DUI state in the country.
On the other hand, the actual number of DUI detections in Utah is also down—suggesting that implied consent laws may have had a similar effect on DUI detection in addition to DUI prevention. This suggestion is worth noting, as it may have implications for public policy decisions. If implied consent laws are affecting the number of DUI detections, the question may then become: how effective will implied consent alone be in actually preventing DUIs?
Indeed, it may just be too early to tell, notwithstanding Utah’s experience. Kevin V. Smith-Hernandez , a former research analyst for the National Highway Traffic Safety Administration (NHTSA), has characterized the effect of implied consent laws as "controversial and ongoing," noting: The "inability" of officers to arrest drivers who fail initial roadside breath tests that they know would otherwise lead to an arrest has long been cited by law enforcement as a reason for failure to arrest intoxicated drivers. Implications for the deterrent effect of substance-impaired driving laws are not clear. In other words, not only does implied consent not prevent all DUI’s; it also may not help all DUI detections. As a practical matter, this means that DUI’s still occur that otherwise might not, and that DUI’s get somehow "missed." It is apparent from these concerns that DUI prevention through public policy requires new attention to the potential effects of implied consent laws, including in places like Arizona that directly address this issue in its statutes.