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What does implied consent mean?

In Virginia, an arrest for driving under the influence, or DUI, triggers the state’s implied consent law. Implied consent deems that a driver implicitly consents to a chemical test, such as blood, breath, or both, within 3 hours of the DUI arrest. 

Our DUI defense law firm generally advises cooperation with an officer up to the point of an arrest. After the arrest (and accompanying Miranda warning), we advise a driver to answer additional questions from the officer only in the presence of an attorney.

Regarding implied consent, if an arrested driver refuses a chemical test, that refusal probably will only delay the test; the officer may still obtain a warrant to obtain the blood alcohol content evidence. In addition, the post-arrest refusal will result in a one-year license suspension, and the prosecution can use that refusal as evidence against the driver in any court proceedings.

Notably, there is a difference between refusing a breath test before an arrest. This preliminary breath test is similar to a field sobriety test, used by an officer while he or she evaluates whether there is probable cause to support a DUI arrest. Refusing this preliminary test will not result in license suspension or adverse evidence, but again, it may only be a delay tactic.

An officer also has other tools at his or her disposal before an arrest, including various field sobriety tests and the traditional signs of intoxication, such as slurred speech, bloodshot eyes, breath smelling of alcohol, and an unsteady gait. A driver who refuses the preliminary test but performs poorly on the field sobriety test may still be arrested, at which point the implied consent law takes effect.

In our next post, we take a closer look at how BAC results might be used against a driver in court.

Source: FindLaw, “Defenses to Drunk Driving,” copyright 2017, Thomson Reuters

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