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How is the Implied Consent Law Used at an APS/DUI Hearing?
Operating a Motor Vehicle on California public roadways is a “conditional privilege.” Meaning, the State of California will grant a qualified person the privilege to drive within the State but, there are “strings attached.” For a person to drive in California, they must attend and pass an approved driver’s instructional course. All California drivers must pass an approved written test and a “behind the wheel” exam to demonstrate they have the skill to safely operate a motor vehicle.
All California drivers are required to know and obey the “rules of the road;” and all California drivers are required to maintain appropriate automobile insurance. Any driver from another state who drives in the State of California is subject to all of the provisions and requirements of California Law, even if they are not familiar with them.One of the most powerful rules that all drivers agree to when they first receive their California driver license, or when the enter the state on another state’s driver license, is the “Implied Consent Law.” California Vehicle Code (CVC) Section 23612, makes it mandatory for ANY DRIVER, who has been lawfully arrested for DUI, to submit to a chemical test of their blood or breath to determine their blood/alcohol concentration. CVC section 23612 reads, in part:
A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcohol content of his or her breath, if lawfully arrested……
At an Administrative Per Se (APS) hearing before the California Department of Motor Vehicles (DMV), the DMV will seek to punish a driver more severely if they are found to have refused to submit to a chemical test of their blood or breath at the request of a law enforcement officer. Known as a Chemical Test Refusal, any driver refuses to submit to a chemical test, has violated both a civil contract with the state and the provisions of California State Law. A chemical test refusal is considered a blatant violation of the Implied Consent Law and exposes an accused driver to the complete suspension or revocation of their driving privilege for a minimum period of one year.
Does the Implied Consent Law Apply to Everyone?
When a new driver first accepts their driver license in the State of California, they sign an acknowledgement that they understand and will abide by the Implied Consent Law. Essentially, a person creates a civil contract with the State of California in which they “imply that they will consent” to a chemical test and that they relinquish their protection against unreasonable search and seizure. In return for their promise to submit to a chemical test, they are granted the privilege to drive. Refusing to submit to a chemical test violates the Implied Consent Law; breaks the civil contract with the State; and subjects the driver to more severe penalties.
Many times, drivers do not recall establishing a civil contract with the State and/or they have forgotten its requirements. Also, many drivers who are arrested for DUI in California are visiting from other states and may not be familiar with California’s stringent requirement for chemical testing; nonetheless, ANY DRIVER who operates a motor vehicle in the State of California is subject to the Implied Consent Law. Ignorance of the law is not a defense.
Because of this and because the penalties for violating the Implied Consent Law have painful consequences, police officers must expressly advise drivers regarding the provisions of the Implied Consent Law and what the possible consequences may be. In its text, the Implied Consent Law repeatedly mandates that a police officer shall advise the driver of the provisions of the law. For a Chemical Test Refusal to be used against a driver, the refusal must be “knowing” and it must be “willful.’ This means an accused driver must know that he or she is refusing a chemical test and they must know the penalties associated with doing so. Also, the driver’s refusal must be willful. In other words, the officer must be able to objectively determine that the driver refused and the driver must be able to physically and mentally understand what they are doing.
Many drivers are confused about their right to have an attorney present when making a decision to submit to a chemical test of their blood or breath. This confusion can be exacerbated by the fact that two laws are in conflict with one another. For decades, citizens of the United States have known about their legal right to legal counsel before making any statements to police or making any critical decisions in their case.
In its landmark 1966 decision, the United States Supreme Court ruled in the case of Miranda v. Arizona, that a police officer seeking to conduct a “custodial” interview or interrogation of a citizen, must first advise that person of their right to an attorney. Over the years, Hollywood has engrained a general expectation that citizens will be advised of their “Miranda Rights,” when they are arrested. We are provided with this protection under the Fifth Amendment to the United States Constitution and many drivers incorrectly expect to be protected by its provisions.
The California Implied Consent Law stands in stark contrast to the rule of Miranda. When accepting the privilege to drive in California, our citizens expressly waive their right to an attorney before making a decision about submitting to a chemical test of their blood or breath. In effect, if a driver is lawfully arrested, he or she must submit to a blood or a breath test without the benefit of speaking with an attorney.
If You are Accused of Violating the Implied Consent Law, Call US
The penalties for violating California’s Implied Consent Law can be quite painful. At a minimum, a driver found to have refused to submit to a chemical test of their blood or breath can look forward to losing their driving privilege for a minimum of one year.
As grim as that sounds, these cases can be won. The DMV Defense Experts from California Drivers Advocates (CDA) have been fighting and winning APS Hearings and Refusal Hearings before the California Department of Motor Vehicles for years. The law has very specific safeguards for drivers to protect them against erroneous allegations of Chemical Test Refusal by law enforcement officers. At CDA we know that makes a difference at a Refusal Hearing and we’re ready to put our knowledge and experience to work for you. Call us now……..We can help.