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Common Questions Asked About The Implied Consent Suspension

What Is The Implied Consent Suspension In California In A DUI?

Implied consent is something that you agree to, you impliedly consent, signing under penalty of perjury to take the driver’s license. You impliedly consent that if you are arrested for a DUI, you will take the chemical tests, either a blood test or a breath test. Years ago, they also had a urine test as one of the options, but they don’t have it anymore.

If you fail to take either of the two tests, the breath test or the blood test after being arrested for a DUI, the officer has a choice in California of requesting a warrant from a judge to take your blood, or if they need to, they would forcibly take blood from you.

In an implied consent suspension, the suspension is often called a refusal suspension in California. That would mean that if you refused to take that test, as determined by the Department of Motor Vehicles, or if you’re convicted in court of refusing to take a chemical test after being arrested for a DUI, then you’re looking at a minimum of one year of no driving. That does not include a restricted license, a work license, a license to and from DUI schools; no driving at all for at least one year.

What If Someone Is Incapacitated And Can’t Give A Breath Sample? Is That Considered A Refusal?

It depends on who you’re dealing with. This is why it’s important to have a DMV hearing officer in these cases for someone who is reasonable and aren’t afraid of facing their supervisors if they satisfy the suspension.

If someone is unconscious or just too drunk, they will end up not being able to take a test. It should not be a refusal because if they’re too drunk and the officer clearly sees that they’re unable to do it, it means that they don’t understand what’s going on.

If you’re trying to explain something to someone and they’re too out of it, they really can’t consent to it. In that case, the officer may do a forced blood draw, they may wait till someone sobers up a little bit. Typically, if someone can’t verbally consent or they’re too out of it or too passed out, then they are taken for medical evaluation because they’re looking at potential alcohol poisoning and blood can be drawn in a medical facility.

You would hope that they wouldn’t do it in a non-medical facility but they can draw blood, they will and they will often get away with it. This happens quite often. In other cases if a person is too intoxicated and cannot take the test, the officer might say that they refused to take a chemical test and then take their license away. In that case, if you have a good attorney representing you, a good DMV hearing officer will understand that and the license will not be suspended.

If someone cannot give a breath test, that’s either because they’re unable to breathe, they don’t have a lung capacity, they are a heavy smoker, or they have some type of illness, then the officer will tell them that they’re required to do a blood test.

Then there may be cases where someone can’t or won’t do a blood test because they’re hemophiliac. If the officer knows that someone is a hemophiliac, they are not allowed to give them a blood test. That’s because unless it’s done in a hospital setting, it’s a situation where you’re putting that person’s health, potentially their life in danger. It would not be done in a medically approved manner unless they were properly supervised by a properly trained hospital staff. Even then, they might say don’t do it because of their medical condition.

Get information about the Implied Consent Suspension In California, or call the Law Offices of Aaron Bortel for a free initial consultation at (415) 523-7878 and get the information and legal answers you’re seeking.

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Aaron Bortel
With 30 years of specialized experience in DUI defense, Attorney Aaron Bortel is a dedicated advocate for those facing DUI charges in the Bay Area. Committed to helping clients avoid jail, save their driver’s licenses and jobs, and prevent permanent criminal records, he combines deep legal expertise with genuine care for his client's welfare. Trust in a lawyer who not only defends but truly supports you through challenging times.

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