What Is the Implied Consent Law?

You probably know that the police are not allowed to search your person or property without your consent or a warrant. This is true...for the most part. The thing is, when you drive a car, most state laws decree that police officers have something called "implied consent" to administer certain tests to see if you're driving under the influence of alcohol or drugs. Let's review these laws in more detail.

The Implied Consent Law, Defined

Although the law varies a bit by state, the spirit of the implied consent law is the same across the county. Simply by getting behind the wheel of a car, you automatically consent to allow law enforcement officers to test your blood, breath, or urine for drugs and alcohol. That means that when a cop pulls you over and wants to give you a Breathalyzer, you've already answered "yes."

However, many motorists still refuse to submit to the test. Most of the time, when people refuse, it's because they know that their blood alcohol content (BAC) is over the legal limit. Therefore, the results of the test will be used as evidence to convict them of driving under the influence (DUI). These drivers believe that the penalties for refusing the test are much less severe than those for a DUI, so they think it's in their best interest to refuse. Let's test that theory.

What Are the Penalties for Violating the Implied Consent Law?

In 2016, the Supreme Court of the United States (SCOTUS) ruled that states may not criminally punish drivers for refusing to submit to a blood test under the implied consent law. They can, however, give administrative penalties. Administrative penalties include fines, license suspension, revocation, and the like.

Before the SCOTUS ruling, many states already had administrative penalties only. Some of the states that had criminal penalties in place have been gradually working on writing new legislation to change that. 

However, there are still a handful of states with criminal penalties for violation of the implied consent law. They are:

  • Alaska

  • Arkansas

  • Florida

  • Kentucky

  • Maine

  • Nebraska

  • North Dakota

  • Rhode Island

  • Vermont

  • Virginia

Specific Penalties for Test Refusal

Depending on the state, refusing to take a breathalyzer or other BAC test could get you as little as a suspended driver's license or as much as a year in jail. Let's look at some examples.

Administrative Penalties

In Maryland, police officer who suspects that you might be driving drunk will first ask you to take a field sobriety test. You've probably seen these on TV. Usually, the officer will ask you to walk a straight line, stand on one foot, or something similar. If you refuse the field sobriety test, the officer can arrest you on the spot. 

After the field sobriety test, the officer might ask you to take a breath test. State law actually allows you to have an attorney present for any chemical BAC test. If your attorney can arrive within two hours, you can delay the test until they arrive. If you refuse the test all together, you will automatically have your license suspended for 120 days on the first offense. Subsequent offenses come with a year-long suspension.

Criminal Penalties

In Florida, field sobriety tests are not required, and drivers are allowed to refuse them. If you refuse the breathalyzer test, however, you will be subject to administrative and criminal penalties.

Non-compliance with the implied consent law results in an immediate 12 month license suspension for the first offense. If you refuse to take the test again in the future, your license will be suspended for 18 months.

In addition, the state has the right to charge you with a misdemeanor criminal offense. The penalties are up to 1 year in jail and a $1,000 fine. 

Should You Refuse the Test?

You might look at all of this information and think that it's in your best interest to refuse the breathalyzer test if you've been drinking. But is that correct? Only an attorney can give you direct legal advice. But we can say this: The answer isn't quite as straightforward as you might think.

Simply refusing to take a test doesn't necessarily let you off the hook for a drunk driving arrest. In fact, prosecutors could use your refusal to take the test as evidence against you. 

The only truly safe way to avoid getting arrested for driving under the influence is not to do it. Every day in the United States, 28 people die from auto accidents caused by drunk drivers. That's one person every 52 minutes. Don't be another statistic. If you drink, don't drive. And if you're driving tonight, don't drink. 

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