What is implied consent?
Illinois’ implied consent law states that a person who drives or is in actual physical control of a motor vehicle upon the public highways of the State shall be deemed to have given consent to a chemical test or tests of blood, breath, or urine for the purpose of determining the content of alcohol in the blood. In addition, the Illinois legislature is attempting to extend its implied consent law to include pre-arrest field sobriety tests and hand held breath tests.
All drivers in California suspected of DUI are subject to the “implied consent” law once taken into custody. That law, found in Vehicle Code section 23612, provides that the police may take a sample of an arrested driver’s blood, breath or urine to test for blood alcohol content without asking permission.
Implied consent laws vary by state, but the setup is the same: Your agreement to submit to these tests was implicit – or implied – when you signed papers to get your driver’s license. The laws you are subjected to are those of the state in which you were arrested, not the state where you obtained your driver’s license. These laws are vigorously objected to by most criminal defense attorneys on the basis that every person needs an automobile to lead a productive, normal life. The thinking behind implied consent laws is that driving is a privilege, not a right, and that law enforcement officials have the responsibility to determine if you are a danger to the public. Defense attorneys also argue that you are subjected to criminal action for your DUI as well as license suspension, known as double jeopardy. However, because the license suspension is an administrative action by the DMV rather than a criminal issue, double jeopardy does not distinctly apply. In most states a driver with a BAC
Under circumstances set out in VTL §1194, a police officer is authorized to request a motorist to submit to a chemical test and the law provides that “[a]ny person who operates a motor vehicle in this state shall be deemed to have given consent to a chemical test of one or more of the following: breath, blood, urine, or saliva, for the purpose of determining the alcoholic and/or drug content of the blood. . . .” When an authorized request is made, a motorist is then said to have given his or her “implied consent” to submit to the chemical test.
