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What Does Implied Consent Mean?

If you’ve been stopped under suspicion of DUI, you should be aware of the implied consent laws and consequences for refusing a BAC test. You may face enhanced penalties in addition to the standard DUI punishment, so it will be in your best interest to know what is and isn’t expected of you during a DUI stop.

What Is Implied Consent?

Under California law, “implied consent” means all drivers lawfully arrested for a DUI are required to submit to chemical testing to determine their blood alcohol concentration (BAC). The law enforcement officer who stops you must have probable cause to believe you’ve been driving under the influence of alcohol or drugs for the stop to be considered lawful.

Note that implied consent applies to all motorists in California, whether you are a California resident with a state license or a non-California resident with an out-of-state license.

Preliminary Alcohol Screening (PAS) Test

As mentioned above, implied consent only applies to breath tests after a lawful DUI arrest. This means that a driver can refuse to take a preliminary alcohol screening (PAS) test before an arrest takes place.

Note that there is no penalty for refusing to take a PAS breath test unless a person is either:

  • under the age of 21, or
  • on probation for a prior DUI conviction.

Further, as long as you are at least 21 years of age and not on DUI probation, refusal to take a PAS test may not be admitted at trial as evidence of guilt. However, if you do agree to a PAS test, the results of the test can be used to help convict you of a DUI.

Types of BAC Tests

California law generally allows you to choose between a blood or breath test, and if none are available, you must take a urine test. Note that a breath test is required under implied consent, but a blood test is not. There are three conditions in which police can require you to take a blood test:

  • a warrant for the test,
  • suspicion of a California felony DUI, and/or
  • suspicion of DUID.

With this in mind, you do not have grounds to refuse a breath test, but you may have grounds to refuse an unwarranted blood test. Following the federal case of Birchfield v. North Dakota, the court ruled that it is unconstitutional for a state to criminalize refusal of a blood test without a lawful warrant. As a result, defendants may not be penalized for refusing to take blood tests in cases where the police have not obtained a warrant.

Penalties for Refusing a Test

If you have been stopped under suspicion of driving under the influence, an arresting officer is required by law to explain the consequences of refusing a test (e.g. fines, jail time, license suspension). Note that you don’t have the right to speak to an attorney prior to taking the test under implied consent, and a test refusal can be used against you in court.

A driver will receive certain penalties for violating the implied consent law. The major consequences include enhanced penalties beyond the standard DUI sentencing and a mandatory license suspension regardless of the case outcome.

Refer to the following chart for specific penalties as a result of refusing a test:

Number of previous DUIs in the past 10 years

Additional jail time for refusing a chemical test

License suspension/revocation for chemical test refusal


48 extra hours in jail

1-year suspension


96 extra hours in jail

2-year revocation


10 extra days in jail

3-year revocation

3 or more

18 extra days in jail

3-year revocation

Defend Against an Implied Consent Charge

A common defense that you can raise if charged with a DUI test refusal is to show that your arrest was not lawful; that is, an officer did not have probable cause for a DUI stop or arrest. If your arrest was not lawful, then you never gave implied consent to a breath test. This could effectively dismiss your entire DUI case if successful.

An experienced DUI attorney can help you better understand the consequences of chemical test refusal under California’s implied consent law and how to defend against such a charge. Our team at Appel & Morse understands the nuanced nature of these kinds of arrests, and we firmly believe in fighting for your right to a second chance.

Contact us at Appel & Morse today for a free DUI consultation.