Implied Consent Law – Why is your Driver’s License taken when you are arrested?
California has what is called an implied consent law. What this means is if you drive a motor vehicle in California you have implicitly consented to submit to a chemical test for blood levels of alcohol or drugs if lawfully arrest for driving under the influence alcohol, drugs or both in violation of sections 231521 231532 or 231403 of the California Vehicle Code.4
A chemical test under the implied consent law must be given at the time a person is lawfully arrested. For the arrest to be lawful there must exists probable cause to believe a persons was driving in violation of either section 23140, 23152, or 23153.5
Additionally a person lawfully detained for violating sections 23136(a)(c) of the California Vehicle Code6 is under the implied consent law require to submit to a PAS test;7 lawfully detained means there exist a reasonable suspicion that the person is in violation of that statute.
A person arrested for driving under the influence is not only obligated to perform a test but also has the expressed right to have a chemical test performed in order to determine the presence of drugs or alcohol; and the arresting officer must have the test performed if requested.8
Anyone who is a hemophiliac, or is taking anticoagulant medication prescribe by a physician is not required to submit to a blood test,9 however they are required to submit to a urine test.
PAS tests, preliminary alcohol screening test, are used by police during the course of an investigation to determine if a person detained has a blood alcohol level of .08% or greater; an officer may ask a detained person to perform this test; but they must advised the person that they can lawfully refuse to take the test; and if they do submit to the test it will not satisfy the requirement to take a chemical test after arrested pursuant to the implied consent law;10 the test may under some circumstances be used as evidence of guilt where a later test under the implied consent law is unavailable.
A person on probation for driving under the influence for either section 23152, or 23153 is required as a condition of their probation, if lawfully detained by a police officer, to submit to a PAS or other chemical test if requested to do so by a police officer; failure to do so will result in a driver’s license suspension or revocation, as well as a likely revocation of the underlying probation.11
1 Misdemeanor driving under the influence
2 Felony driving under the influence
3 Under 21 with blood alcohol level of .05% or greater
4 Sections 23612(a)(1)(A), (B) of the California Vehicle Code
5 Section 23612(a)(1)(C) of the California Vehicle Code
6 A person under 21 with .01% blood alcohol or more in their system
7 Preliminary Alcohol Screen, a portable alcohol testing device
8 Section 23612(d)(1) of the California Vehicular Code
9 Sections 23612(b), (c) of the California Vehicle Code
10 Sections 23612(h), (i) of the California Vehicle Code
11 Sections 23154(a), 23154(c)(1), (2), 23600 of the California Vehicle Code