DUI Laws
California's Implied Consent Law — What Every Driver Needs to Know
By driving on California roads, you have already consented to chemical testing if lawfully arrested for DUI. Learn what the implied consent law requires, what happens if you refuse, and how an attorney can protect your rights.
By Michael P. Kade — Former LAPD Officer & Criminal Defense Attorney · Updated
Educational purposes only — not legal advice. This article provides general information about California DUI law and does not create an attorney-client relationship. Consult a licensed attorney for advice specific to your situation.
Key Takeaways
- —California's implied consent law is codified in Vehicle Code § 23612
- —Every driver on California roads has impliedly consented to a chemical test upon lawful DUI arrest
- —You must choose between breath and blood — you cannot demand a urine test in most cases
- —You do not have the right to consult an attorney before deciding which test to take
- —Refusal triggers automatic license suspension and enhanced criminal penalties
California's implied consent law — Vehicle Code § 23612 — is one of the most important statutes in DUI law. It establishes that every person who drives a motor vehicle on a California road has impliedly consented to submit to a chemical test of their blood or breath if lawfully arrested for DUI. Understanding what this law requires — and what it does not require — is essential to protecting your rights after a DUI arrest.
What the Implied Consent Law Requires
After a lawful DUI arrest, the arresting officer must advise you that: (1) you are required to submit to a chemical test to determine your blood alcohol or drug content; (2) you have the choice of a blood or breath test; (3) if you refuse, your driving privilege will be suspended or revoked; and (4) refusal may be used against you in court. This advisement is mandatory — if the officer fails to give it, the refusal may not be used against you at the DMV hearing or at trial.
Choosing Between Breath and Blood
When both tests are available, you have the right to choose between a breath test and a blood test. Each has strategic implications. A breath test produces an immediate result but cannot be independently retested. A blood test can be preserved and independently analyzed by a defense expert — a significant advantage if you believe the result is inaccurate. If the officer reasonably suspects drug impairment in addition to alcohol, they may require a blood test even if you already took a breath test.
When the Implied Consent Law Does Not Apply
The implied consent obligation is triggered only by a lawful arrest. If the arrest was unlawful — for example, if the officer lacked probable cause — the implied consent obligation does not apply, and a refusal cannot be used against you. Additionally, the implied consent law applies to post-arrest chemical tests, not to the pre-arrest PAS roadside screening test. Drivers 21 and older who are not on DUI probation may decline the PAS test without triggering implied consent penalties.
Implied Consent and Warrants
The U.S. Supreme Court's decision in Birchfield v. North Dakota (2016) held that the Fourth Amendment permits warrantless breath tests incident to a lawful DUI arrest, but requires a warrant for blood draws. California law was amended to reflect this ruling. If you refuse a breath test, the officer may seek a search warrant for a blood draw. Courts have generally upheld forced blood draws pursuant to a valid warrant, and the refusal itself can still be used as evidence of consciousness of guilt.
Penalties at a Glance
| Offense / Situation | Potential Penalty |
|---|---|
| First refusal — DMV | 1-year license suspension; no restricted license |
| Second refusal — DMV | 2-year revocation |
| Third+ refusal — DMV | 3-year revocation |
| Refusal — criminal enhancement | Mandatory additional jail time upon DUI conviction |
Penalties shown are general ranges. Actual sentences depend on the specific facts of your case.
How Attorney Kade Defends These Cases
- —Challenge whether the arrest was lawful — an unlawful arrest voids the implied consent obligation
- —Challenge whether the officer gave the required implied consent advisement
- —Argue that a medical condition prevented compliance with the chosen test
- —Challenge the warrant if a forced blood draw was conducted
- —Use the choice of blood test strategically to preserve the sample for independent analysis
- —Request a DMV APS hearing to challenge the refusal finding within 10 days of arrest
- —Challenge the chain of custody and testing procedures for the blood sample
Frequently Asked Questions
While you are not legally required to have an attorney, a DUI conviction carries serious consequences — fines, license suspension, possible jail time, and a permanent criminal record. An experienced DUI attorney can challenge the evidence, negotiate with prosecutors, fight your DMV hearing, and potentially get charges reduced or dismissed. The cost of an attorney is almost always less than the long-term cost of a DUI conviction.
A California DUI case typically takes 3 to 12 months to resolve, depending on the county, the complexity of the case, and whether it goes to trial. Misdemeanor DUI cases in Los Angeles County often take 4 to 8 months. Felony DUI cases take longer. Your attorney can give you a more specific estimate based on the facts of your case and the court's current caseload.
After a DUI arrest: (1) Do not make any statements to police beyond identifying yourself. (2) Contact a DUI attorney as soon as possible — ideally within 24 hours. (3) Call the DMV Driver Safety Office within 10 days to request an APS hearing or your license will be automatically suspended. (4) Write down everything you remember about the stop, the tests, and the arrest while it is fresh.