Drunk driving is an especially serious offense that can result in significant legal consequences. Depending on the laws of your state, a person is generally considered to be legally intoxicated if they have a blood alcohol content (“BAC”) of 0.08% or 0.10%.
When a person chooses to operate a motor vehicle after drinking alcohol or taking drugs that impair their senses, they face many legal ramifications such as getting:
- Criminally fined;
- Arrested; and
- Charged for driving while intoxicated (“DWI”), or the more commonly known term, driving under the influence (“DUI”).
While a person who has been charged with drunk driving generally only receives a misdemeanor for their first offense, they may still be charged with a felony if they have injured another person or caused damage to property. They may also face felony charges if it was not their first drunk driving offense.
Additionally, while most states will charge a drunk driver with a DUI, each state has its own set of criteria for what is considered to be a drunk driving offense, as well as different varieties of the potential charges that may apply.
Finally, it is important to note that drunk driving is more than just a mere traffic citation; it is considered to be a criminal offense. As such, if you are convicted of a drunk driving offense, it will appear on your criminal record.
What Tests Are Used To Determine Intoxication?
If a police officer suspects that a person is driving drunk, they will have probable cause to pull that person over. This can occur for many reasons, including when they see that a person is speeding or swerving, as well as if they observe alcohol or drug paraphernalia in the vehicle.
After a person has been pulled over, the officer will most likely request that they step out of the vehicle and take one of the following tests in order to determine whether they are sober:
- Breathalyzer: This is a handheld device that measures the concentration of alcohol in a person’s system when they blow into it. It can be administered at the scene where the car was pulled over, or at a police station;
- Blood or Urine Testing: This test requires a medical professional to do the testing and produce lab results. Additionally, the police will need to obtain a warrant first; as such, this test is not generally administered at the scene; and/or
- Field Sobriety Tests: Generally given at the scene, they include a variety of different activities that are designed to test a person’s balance and agility. Examples include touching a finger to your nose, reciting the alphabet, or standing on one foot while counting.
If the driver fails any of these tests, the officer will have grounds to ticket and arrest them for drunk driving. If the driver refuses to perform any of the tests that can be administered at the scene, the officer can still arrest them if they suspect that they have been driving drunk.
Finally, factors such as the smell of alcohol on a person’s breath or from open containers in the vehicle can be used as evidence that an officer may rely on in order to arrest them for drunk driving.
What Is Implied Consent? What Are Implied Consent Laws In California?
“Implied consent” is a specific type of legal consent which is not expressed by a person, but rather is inferred from the situation or otherwise imputed on the person by law. An example of this would be how if a person is unable to consent to a doctor working on them because they are incapacitated, the doctor may be able to perform necessary services because if the person could consent, they most likely would.
Implied consent more commonly appears in the context of drunk driving and DUI laws. Most states have implemented some sort of law stating that any person who drives a vehicle consents to chemical testing after being stopped or arrested for driving under the influence.
In California, it is implied that the license holder has given their consent to a breath test intended to measure their blood alcohol content (“BAC”) upon being arrested for a DUI. It is important to note that implied consent laws only apply to chemical testing that is required after the DUI arrest. What this means is that a person can refuse to take a roadside breath test before being arrested.
Consequences for refusing to submit to a chemical test after an arrest are considerably severe in the state of California. The penalties for refusal, known as “refusal enhancement penalties,” will be levied in addition to standard DUI penalties. Refusal enhancement penalties may include:
- First Time DUI Offense: Driver’s license suspension for 1 year, with possible jail time up to 48 hours, as well as 9 months of alcohol education courses;
- Second Time DUI Offense: Driver’s license suspension for 2 years, with possible jail time up to 96 hours; and
- Third Time DUI Offense: Driver’s license suspension for 3 years, with possible jail time up to 10 days.
Failing to submit to a test can result in charges for both the DUI and the refusal. Failing to complete a blood alcohol content test can also result in charges for purposely not blowing hard enough into the breathalyzer.
In order to avoid confusion, you should be aware that implied consent is a general legal concept, and as such has many other applications besides DUI arrests. An example of this would be how implied consent is also used in the following situations:
- Court Procedures: In court, parties have the right to object to the introduction of an item of evidence. If the party fails to make an objection in a timely manner, they have implied waiving their right to object; or
- First Aid: As was previously mentioned, many jurisdictions have laws allowing health care professionals to assume implied consent in order to treat a person who is critically injured but unable to respond.
What Generally Happens After A Drunk Driving Arrest?
After a person is arrested for drunk driving, they will be assigned a court date. If they are charged with a DWI or DUI, they must decide whether they are going to fight the arrest, take a plea deal, or proceed to trial.
Some legal defenses available to use against the charges may include the following:
- The person being arrested was not actually the driver of the vehicle;
- There was no probable cause to pull them over;
- The test itself or the results were unreliable, or inaccurate; or
- There was insufficient evidence in order to make an arrest.
As previously mentioned, the requirements for a DUI offense varies widely from state to state. Some states will permit police to arrest an individual who is drunk, even when their car is in park. An example of this would be how in certain states, if the police find a car parked on the side of the road with a drunk person behind the wheel and their keys are in the ignition, but the car is not turned on, they could still be able to charge them with a DUI.
There are a number of factors that will determine whether the defendant can be convicted of a DUI, or if the charges will be dismissed. Examples include:
- The location of the person who is intoxicated, such as whether they are in the driver’s seat or passenger’s seat;
- Whether the person is asleep or awake;
- The location of the car keys, such as in the ignition, on the floor, in the person’s pocket, etc.; and
- Where the car is parked, such as in a parking lot, driveway, or the side of the road.
Do I Need A Lawyer For Help With Implied Consent Laws In California?
Disputes involving implied consent can be complicated, as they require an analysis of the person’s actions in order to determine whether they actually consented. In a criminal law context, if you have refused a chemical test after a DUI arrest in California, you should contact a local California DUI/DWI lawyer immediately.
A California DUI lawyer can help you understand your legal rights and options according to implied consent laws in California, and will also be able to represent you in court, as needed.