What is the “Implied Consent Test”?


When arrested for a DUI in southern California, generally you are asked to participate in a chemical test during the initial investigation.  It’s important to differentiate the various levels of breathe tests done by law enforcement during the course of an arrest.  In order for the civil liberties of a citizen to be abridged in the form of a search and seizure, law enforcement needs probable cause. That’s where the first breathalyzer test comes into play – it’s called the preliminary alcohol screening test.  The second breathalyzer test is usually performed at the station house, and is referred to as the Implied Consent Test.

The “implied” portion of the implied consent test refers to the agreement you entered into with the DMV when you applied for you license.  If you’re anything like me, you probably have no idea that by getting a license you have agreed to voluntarily submit to either a blood o breathe test upon a DUI arrest.  Essentially, you have agreed that for the privilege of driving upon the motorways of California, you will be bound by this implied agreement.

If you refuse to voluntarily submit to either a blood or breathe test upon an arrest for suspicion of DUI – first, law enforcement will restrain you and draw your blood forcibly, and second, the DMV will automatically suspend your license for a solid one year.  The stiff penalty is because the DMV takes the position that you are breaking your prior agreement, and therefore should suffer a harsher penalty than those who agree to the test and still test above the legal drinking limit.

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