Implied Consent: Should You Refuse a Blood or Breath Test?

A lawyer walks into a bar. Somehow, he is identified as an attorney. Inevitably, two questions are always tossed in his direction: “Is there ever a situation when it is to your advantage to refuse a blood-alcohol test?” and “Can the police force me to submit to such a test?”

We’d never advise refusing a blood or breath test, or for that matter, driving while under the influence of drugs or alcohol. However, in rare circumstances, it might make sense from a strategic standpoint to withdraw implied consent. Of course, you’ll have to weigh the factors while you are under the influence, which means you’ll probably screw up the judgment call.

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Let’s say you’ve just left Dublin’s on 7th Street. You are pretty confident that you are above the legal limit. However, the officer is harassing you over a tail light or other technical infraction. So far, the police have no reason to suspect drunken driving other than the fact that you are 26 and driving near bars at 1:37 a.m. on a Saturday. The officer now asks you to submit to a chemical test.

First of all, implied consent only applies when there is reasonable suspicion that you are driving drunk. Then again, when you roll down your window to hand over your license and registration, the officer will “smell the booze on your breath” and notice your “watery, bloodshot eyes.” If you submit to a chemical test, you are guaranteed to fail. Should you refuse?

The penalty for refusal is a one-year license suspension for a first refusal (you’ll get two years for a second refusal within 10 years, and three years for a third), plus a sentencing enhancement if you are convicted of the underlying DUI. For example, a first-timer would get an additional 48 hours of jail time, plus a nine-month alcohol education class.

Ordinary first-timers usually don’t get any jail time, unless they have an exceptionally high BAC or hurt someone. They also usually only have to undertake three months of alcohol education classes.

If you are OK with the suspension and rolling the dice on the potential sentence enhancement, and you’re sure you’ll fail the chemical test, then it might just be a good idea to refuse. However, you’ll also want to refuse field sobriety tests and immediately request an attorney in order to limit the officer’s ability to gain additional incriminating evidence.

Without a chemical test, the only method of proving that you were DUI is through field sobriety tests or the observations of the officer, such as your weaving while driving or urinating on the Breathalyzer. If there is no evidence, other than the smell of your breath, proving the case will be very difficult.

Of course, the next question is: Can you be forced to submit to a blood or breath test? Check back later this week to find out.

Related Resources:

• Discuss Your Case With a Los Angeles DUI Lawyer (FindLaw)
• What to Do When Pulled Over for a DUI: Three Tips (FindLaw’s Los Angeles DUI Blog)
• DIY DUI: Defending Yourself at the DMV Hearing (FindLaw’s Los Angeles DUI Blog)
• BAC Test FAQs (FindLaw’s Learn About the Law)