Implied Consent

Under California law, anyone lawfully arrested for driving under the influence is required to submit to a chemical test of his or her blood, breath or urine. This is referred to as the "Implied Consent" law. Refusing to submit to a chemical test has serious consequences with both the DMV and the Courts. However, it is important to understand that the implied consent law only requires that a driver submit to a chemical test after he or she has been arrested on suspicion of driving under the influence. As an Orange County DUI implied consent attorney, I have seen many situations where the implied consent law is misunderstood, misrepresented or misinterpreted. While anyone lawfully arrested for DUI is required to submit to a chemical test, not all arrests are made "lawfully". The distinction is not easily understood but it is important.

The officer must have a reasonable suspicion that the driver is under the influence and the officer will attempt to utilize Field Sobriety Tests (FSTs) to make that determination. Field Sobriety Tests are those “side of the road”What most people don't know is that ALL field sobriety tests are OPTIONAL. Frequently, the police simply tell the driver that he or she is going to take the test and doesn't tell the driver that he or she may choose to decline the FSTs. Why?

The police officer's goal, no matter what you may think, is to obtain evidence to help him or her arrest the driver for DUI. Every test they conduct tightens the noose around the driver's neck. The advice on this page is not implying that driving under the influence is a good idea. What is important is that the average citizen knows and asserts his or her constitutional rights with the assistance of a DUI implied consent attorney in Orange County if he or she desires to do so. So let's talk about the various tools the officer employs when conducting his investigation.

The Field Sobriety Tests, such as balancing and coordination tests, are not required to be performed and may be refused. You are probably surprised to learn that the roadside, hand-held breathalyzer, the Preliminary Alcohol Screening (PAS) device, is considered an FST and may also be refused. That's right: You are not required to submit to any of these FSTs if you have not been placed under arrest for DUI. As a DUI implied consent lawyer in Orange County, I recognize that the sole purpose of the FSTs is to assist the officer in forming probable cause to arrest the driver for DUI.

If however, the officer determines that the driver was driving under the influence of alcohol or drugs and arrests the driver, the driver is then required under the Implied Consent Law to submit to a chemical test of their blood or breath. The officer can make this determination without the use of field sobriety tests. For example, a driver that smells of alcohol and/or is slurring words, or has blood shot eyes and seems disoriented all provide evidence to arrest for DUI. Because drug use cannot be determined by a breath test, urine tests are typically only used when there is reason to believe that the driver is under the influence of drugs.

If, after arrested, the driver refuses to submit to a chemical test, this is a refusal under the implied consent law and is subject to strict consequences with both the DMV and the Courts. At the point that an officer arrests a driver for suspicion of driving under the influence, the officer then has the lawful right to require that the driver submit to a chemical test. Under California law, invoking the right to an attorney at this stage is not considered a valid exercise of your rights. You have no right to an attorney at this stage for obvious reasons; by time your Orange County DUI implied consent lawyer is able to respond, the evidence (your blood alcohol or drug content) may have dissipated.