Implied Consent

The implied consent concept refers to the idea that when you get your driver’s license, you agree that if you are ever arrested for suspicion of driving under the influence (DUI/DWI) of drugs or alcohol, you will submit to a blood, breath, or urine test (depending on availability and whether the suspected chemical was drugs or alcohol). Your agreement to this arrangement was implicit upon getting your license; thus, implied consent.

While implied consent laws vary by state, your implied consent applies to the state in which you were arrested, not the state where you got your license. That is, if you have a license in a state with no implied consent laws, and you are arrested in a state that does have implied consent laws, you are subject to that state’s implied consent laws.

Implied consent also subject you to a rare but legal form of double jeopardy. When arrested under an implied consent law, you may be facing a license suspension by the Department of Motor Vehicles. For the same offense, you are also facing a criminal court case. This is not considered double jeopardy, however, because the DMV's action is considered an administrative action, not a criminal proceeding.

If you're arrested for a DUI, the implied consent laws aim to encourage you to submit to a chemical test. Failure to do so can subject you to many more punishments. Take the DMV action, for one. Under implied consent, refusal to take a blood, breath, or urine test can result in a more severe license sanction than if you had submitted to a test.

Implied consent laws also allow for criminal consequences for not submitting to a chemical test. Many states allow your refusal to be admitted as evidence of consciousness of guilt, increasing your chances of a conviction. Refusal to submit to a chemical test can also be used by the judge or jury in handing down more severe punishments, either as part of a conviction or a plea bargain. Moreover, under implied consent, the very act of refusing a chemical test is in itself a crime and you could be subject to the punishments associated with breaking that law, regardless of the outcome of a DUI trial.

The aspects of implied consent laws vary by state. And DMV sanctions are often done quickly and without subjectivity to review. Therefore it is best to talk to a qualified DUI attorney immediately about how implied consent applies to you.