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Implied Consent Laws in California

Posted by Ronald D. Hedding | May 11, 2020 | 0 Comments

How are the Police Allowed to Arrest you for a Los Angeles DUI if they Don't Know What Your Blood Alcohol Level Is?

This is an interesting question.  People get pulled over all the time and they get arrested by the police and if the police don't have your blood alcohol level in a DUI case, then what gives them the right to arrest you?

Here's where the police actually have some discretion and the DMV also helps them.  First, there's something called the Implied Consent Law which basically means, when you get your driver's license you have to agree that if the police think in their discretion in Los Angeles that you're driving under the influence of something — whether it's alcohol or drugs — then you have to consent to give a blood or breath test.

So, if you don't do that it's going to be a refusal.  You're going to get arrested.  It will automatically be presumed that you're DUI and you'll lose your driver's license for a year.

Preliminary Alcohol Screening Device

So, the way that they're allowed to arrest people is one easy way is if they have the preliminary alcohol screening device.  You take it and your blood alcohol level is a .08 or greater, then that makes it easy for them.

Implied Consent Laws in California

They can arrest you, take you into the police station and make you either do a blood test or the Intoxilyzer 3000 which is the more accurate test at the police station.  So, that's one easy way.

But a lot of times they don't have the preliminary alcohol screening device or people realize that they don't have to consent to that little device.  So, what they have to do then is look at the surrounding circumstances.

Let's say you swerving on the freeway like you're drunk.  That would make it easy to give them probable cause to be able to arrest you.  But they'll go further than that.

Field Sobriety Tests

They're going to do the field sobriety tests. Those are designed to determine whether or not you can safely operate a motor vehicle.  So, if you fail those that would give them probable cause to arrest you.

They could take you in, then they would give you the option of the blood or breath test and they would be justified.  Even if people take blood, they realize they're getting arrested, they take their blood, they don't even know what the blood result is until much later.  Sometimes a week or two later, even longer.

So, they're relying on how you performed on the field sobriety test and whole host of other factors.  How did your breath smell?  Did it smell like alcohol?  Were you stumbling as you were walking?  Was your speech slurred?  Were your eyes bloodshot and water?

The list goes on and on and on, and especially the California Highway Patrol have been specially trained to determine whether or not someone can safely operate a motor vehicle.

Probable Cause

Now, if somebody is so intoxicated that they can't perform the test or they're on drugs and they're slumped over and passed out at the wheel, obviously that would make it easy for the police to be able to arrest the person.

So, really what you're looking at — what it boils down to — is do they have probable cause that you're under the influence of something — whether it be drugs, alcohol, anything — even prescription medication.  If they do, you have to cooperate with them, and they have the ability to arrest you.

Of course, your attorney can unravel things once everything comes out once your blood alcohol level comes up, but out in the field the police have to be given that opportunity to be able to arrest.

They have to be given that leeway otherwise they wouldn't be able to arrest anybody because it would be so difficult to determine whether or not they were under the influence of something and they were driving in Los Angeles against the law.

About the Author

Ronald D. Hedding

What Makes Ronald Hedding Uniquely Qualified To Represent You? I've been practicing criminal defense for almost 30 years and have handled thousands of cases, including all types of state and federal sex crime cases. All consultations are discreet and confidential.


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