When evaluating the issues surrounding the implied consent law, the first thing that you must know is that in California, the legislature sees driving as a privilege, not a right. Therefore in order to enjoy the privilege of driving on the roads in our state, each driver must agree to certain things related to their rights to drive.
One important thing is that if the police pull you over and ask you to consent to an alcohol test, because they believe that you are under the influence of alcohol, then you must comply. This gives the police a lot of power because many times it is very subjective as to whether or not someone is under the influence of alcohol.
If you do not comply then it will be automatically assumed that you are driving under the influence of alcohol and the Department of Motor Vehicles will suspended your drivers license for one year with no restricted privileges during the suspension period.
The reason for this is because if this rule where not in place, then authorities would not have the ability to catch anyone for a DUI because everyone would just refuse to cooperate and the police would have no way to prove their case in court.
This result of losing your drivers license for a year is a very harsh one and devastating to most people who live in the Los Angeles area. Because it is so hard to get around in Los Angeles, the loss of your drivers license can cost you in many different ways.
If you are pulled over, then you are best served to cooperate with the police, because even if you are over the legal limit, the DMV will only suspend your drivers license for a real 30 days (for your first offense, with a five month restricted license after that) versus the year suspension for refusing to take the blood or breath test when asked to do so by law enforcement.
As you might guess, the implied consent law does have it limits. It does not make it necessary to take the field sobriety tests that the police usually try and administer related to their dui investigation.
Further, you are not required to take the preliminary alcohol screening device (PAS device) test out at the scene of your arrest. Of course if you have not been drinking any alcohol when the police pull you over, then you may want to take it, just so they will let you go and not take you back to the station and ruin the rest of your night.
If the police do suspect that you are under the influence of alcohol, then you will be required to take either a blood or breath test at the station. The blood test is typically done at the hospital, however there are some stations (like Van Nuys) that have the capability to take people’s blood for DUI purposes.
Most of the time the breath test is usually done at the police station in Los Angeles County. However, beware that many counties like Ventura and Orange are actually making people take the official breath test out in the field. Again, when you do not cooperate with the police during a DUI investigation, you run the risk that they will try and cheat you and write their report in an unfavorable manner.
Another thing that you do not have to do as part of the implied consent law is to give the police any type of statement. For example, if they ask how many drinks you had or any other questions designed to illicit an incriminating response, you can simply refuse to answer.
The police usually try and sneak in incriminating questions during the booking process in order to seal up any loose ends related to their DUI investigation. The bottom line to remember when it comes to implied consent is that you must take the blood or breath test, but not completely give them all of the other information they need to bury related to their DUI investigation.
Just because someone made the bad move of refusing to submit to a chemical test when asked to do so by a law enforcement officer related to a DUI investigation does not necessarily mean that they lose all ability to challenged their DUI case.
There are certain rules that the police must comply with in order to convict you for a DUI. If they illegally stop you, for example, then everything they find after that would be thrown out, based on the illegal stop. That would include any argument that you refused to take the blood or breath test.
Another way to fight you DUI refusal case centers around the requirements that the police must conform to if they want to utilize the refusal / implied consent law to convict you of a DUI.
They must explain to you what will happened to you if you refuse to take a chemical test and then record what your response was after they asked you to comply. Further, they must explain to you that you have a choice of giving a blood or breath sample in order to meet their requirements.
I see a lot that the police just tell a person that they must take a breath test or they will lose their license. This is not sufficient for purposes of a refusal, because they also have to offer them the blood test and let them know that they have a choice between the two tests.
Just because the police are too lazy to go to the hospital and perform the blood test, will not let them off the hook for failing to comply with the refusal requirements.