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Implied Consent

Under an implied consent law, any person who operates a motor vehicle in the state is deemed to have consented to a DUI chemical test. The implied consent law serves as a means for gathering evidence against a DUI defendant. Although the implied consent law is legal, it fails to mask the law’s foundational fallacy that a driver's presence on a state's highway indicates an agreement to submit to a chemical test for drugs or alcohol upon the lawful request of a police officer.

 

National DUI laws operate under the mistaken belief that revocation keeps DUI offenders from driving and thus is the most effective method of discouraging DUI offenders. This belief ignores the reality that revocation does not keep DUI offenders from driving. It only succeeds in taking the DUI offenders ability to drive legally.

 

Currently, the federal government funds grants to states that implement certain DUI prevention programs. As a direct result, many states have implemented summary driver's license suspension systems into their implied consent statutes for both failure of a chemical test and refusal to take a test. Under the guise of justice and public safety, states have managed to circumvent a suspected DUI offender’s constitutional rights and legally discourage refusal of chemical testing.

DUI lawyers strive to remind courts that the Fourth Amendment of the United States Constitution states that, "the right of the people to be secure against unreasonable searches and seizures, shall not be violated." Although valid arguments have been raised regarding this right in DUI cases, such arguments have been repeatedly rejected.

 

Furthermore, the Fifth Amendment of the United States Constitution states that “no person . . . shall be compelled in any criminal case to be a witness against himself." Again DUI lawyers have tried to point out the clear error DUI implied consent laws make in violating a motorist's Fifth Amendment privilege against self-incrimination, without much success. Fifth Amendment challenges have been brought in many cases, such as when a DUI suspect submitted to a chemical test or refused chemical testing.

One state statute made refusing to take a blood alcohol test a criminal misdemeanor on the grounds that the privilege protects an accused only from being compelled to testify against himself or otherwise provide the State with evidence of a testimonial or communicative nature, and that the withdrawal of blood and use of the analysis in question in a DUI case does not involve compulsion to these ends. The Fifth Amendment should have protected the DUI defendant in this case, but the court wouldn’t allow it.

The Sixth Amendment of the US Constitution mandates a right to counsel in any criminal proceeding. The United States Supreme Court has ruled that the criminal right to appointed counsel attaches only in criminal proceedings that result in actual imprisonment. This means that any claim asserting a right to appointed counsel in an implied consent proceeding must therefore be based on the assertion that such a proceeding is sufficiently similar to a criminal DUI drinking/driving proceeding to warrant the appointment or assistance of counsel. DUI lawyers have persistently argued that the state constitutional right to counsel as well as the statutory right to counsel under an implied consent law is limited at best.

 

Most states require a police officer that invokes the implied consent statute to provide the DUI suspect with some form of warning or advisory. In this situation, DUI lawyers have argued that a refusal to submit to the test prior to knowledge of the consequences of that refusal should not be allowed to provide a basis for the suspension of the driver's license.

 

This prior-knowledge of the consequences of refusal is important since most states have enacted some form of implied consent law that requires license revocation upon refusal to submit to chemical testing. Some states require detailed and specific warnings while others remain silent on the issue.

 

Courts are generally reluctant to go beyond what the legislature has provided in an implied consent statute and in states where no warning regarding the consequences of refusing the test is required, courts have held that failure to give one is not fatal to the refusal charge. However, where an implied consent statute does require a specific warning, DUI lawyers who have challenged the penalty resulting from a refusal have been successful. If the consequences of a refusal are serious enough, courts do compel strict adherence to warning requirements.

Naturally, the consequences of refusal hinge on whether the DUI suspect submits to or refuses chemical testing. In cases where DUI suspects submit to chemical testing without being fully informed of how the test results may be used against them, the courts are split as to whether these results should be suppressed. Historically, this argument has gone both ways.

 

Whether the motorist was advised of the ability to choose which test would be taken as well as all of the possible tests that could be taken, has been the center of much dispute regarding provisions of implied consent statutes. In many situations the implied consent statute will specify which tests are available and who is responsible for selecting the test. However, some states have modified their statutes, thus making the issues surrounding these requirements more complex. As a general rule, there is no requirement that the motorist be offered a choice of tests.

 

Implied consent legislation has increasingly adopted the automatic administrative license revocation for failing a chemical test. In these jurisdictions the prosecution need prove only that a motorist had a specified blood or breath alcohol level to impose the license revocation. State legislature has recognized the obvious conflict of interest a DUI suspect may have in choosing to take the test. Thus the duration of the license suspension imposed for failing the chemical test is usually shorter than the suspension imposed for refusing a chemical test.


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