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Implied Consent Laws

Implied consent is the automatic permission you give to a law enforcement officer to conduct field sobriety tests and chemical tests in the event of a DUI stop. This permission is granted as a condition of obtaining a driver’s license and every state has some form of implied consent laws on the books. Generally, a police officer does not need a warrant to ask for breath testing.

Blood Alcohol Content (BAC) Tests

When suspected of driving under the influence of alcohol, you will usually be given the choice between a blood test and a Breathalyzer test. There are some states that still rely on urine testing, but this method has proven controversial due to its ambiguity.

The purpose of the Breathalyzer test is to determine the concentration of alcohol in the blood. However, not every suspected motorist is willing to provide a sample, and law enforcement cannot physically force a person to breathe into a tube or submit to blood testing during a traffic stop.

BAC Test Refusal

The National Highway Traffic Safety Administration reported that chemical tests are refused by more than 20 percent of those stopped for suspicion of driving under the influence. It is easier for a DUI attorney to defend a client without having to explain away a test that proves intoxication.

But most states carry a separate administrative penalty for refusing to participate. These punishments vary in severity depending on local laws. As such, the breath and blood testing cooperation statistics between states vary just as greatly with as low as 2.4 percent refusal in Delaware to as high as an 81 percent refusal rate in New Hampshire. Even so, a refusal does not guarantee that you will be spared from a DUI conviction. On the contrary, the prosecution may use your refusal as evidence of guilt.

Penalties for Refusing Tests

Many times, you risk criminal penalties including jail time when you refuse testing from an officer who initiates a stop due to reasonable suspicion. The penalties may also include loss of driving privileges due to license suspension. In fact, many attorneys would advise that refusals are only advantageous when people already have a recent DUI conviction on their driving record.

In California, you can receive a citation for refusing a breathalyzer test, but consenting to a blood test will exempt you from facing that charge. However, some other states are not as forgiving.

In New York, you will receive a 6-month license suspension simply for refusing the test, and you may possibly receive a $500 fine. Massachusetts also imposes a 6-month license suspension and a DWI conviction can possibly mean having your license revoked permanently in certain instances.

In Ohio and Florida, you can lose your license for up to a year. A handful of states even allow police to place an ignition lock on your vehicle when you refuse to consent to a chemical test.

Is It Constitutional to Be Charged for Refusing Tests?

In 2016 the U.S. Supreme Court held in Birchfield v. North Dakota that the refusal to take a blood test after a DUI arrest cannot be considered a separate crime. The Court found that such an imposition would be a violation of the Fourth Amendment protection against unreasonable searches and seizures. However, the Court differentiated blood testing from breath testing in its analysis. A warrant is required to ask for a blood sample due to the invasive nature of the needle puncturing the skin and the limited supply of blood that one has available.

Can a DUI Attorney Help?

The potential penalties that can be imposed if a person is convicted of driving under the influence can be significant and can include jail or prison time as well as substantial fines. As a result, those who are facing these types of charges may find it advisable to seek the assistance of a criminal defense attorney so that a strategy to combat the allegations can be developed.

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