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Implied Consent Means Breathalyzer Refusal in D.C. Will Have Penalties

by | Aug 23, 2013

Former teen idol David Cassidy was recently arrested on drunk driving charges after police in New York say he failed to dim his vehicle lights when approaching a police checkpoint and subsequently submitted to a breathalyzer test revealing his blood-alcohol level was 0.10 percent.

It’s worth noting that in New York, just like in D.C., those who refuse to submit to a breathalyzer test would face punishment under the local implied consent laws.

Our D.C. DUI defense lawyers know that these are laws that basically say that by assuming control of a motor vehicle, it is implied that you will consent to a breathalyzer test if you are stopped and asked to do so by law enforcement.

Of course, unlike a blood draw, officers can’t actually force you to take the test without your cooperation because it requires that you participate by blowing forcefully into the machine. However, D.C. Code Ann. 50-1902 holds that if you refuse, you will be subject to an automatic, mandatory license revocation of one year. If you don’t have a valid license at the time of the stop, you forfeit your right to obtain one within the next 12 months.

Implied consent laws also apply to blood tests, which officers can easily take without your consent or cooperation. However, per a U.S. Supreme Court ruling earlier this year, the officer must first obtain a warrant before he or she has the right to initiate and complete a blood draw.

That doesn’t mean the officer can’t take it without your consent, but it does mean it has to be cleared with a judge first.

A contributor to the Washington Times recently penned an editorial, railing against the whole premise of “implied consent” as unconstitutional.

In his column, writer Tyler Knapp rants about the concept that one can give consent to something without ever actively, knowingly providing consent. For example, there is no waiver you sign when you obtain your driver’s license that indicates you understand that by driving a vehicle you are consenting to breath and blood tests for the purposes of alcohol or drug detection.

Implied consent is irrevocable in that you can not at any point say you decline consent without receiving a penalty.

However, the question of whether you should willingly submit to these tests – that is, give explicit approval – is going to depend on the individual circumstances. For example, if you aren’t intoxicated or under the influence of any substances that might impair your ability to drive, by all means, you should offer your consent.

But if you are intoxicated and you know it, you may want to think twice, as the results are likely to bolster the DUI case against you. While refusal to submit to either test may result in an automatic one-year license suspension, recently beefed-up D.C. DUI laws mean a first-time offender is going to mean up to 180 days in jail and fines of up to $1,000. Offenders whose blood-alcohol level measures 0.20 percent or higher face double those penalties, plus a minimum of 10 days in jail.

Your refusal to consent to the test may not actually stop officers from forcing you to undergo it anyway, but it may improve your chances for a successful challenge of it in court.

If you are facing DUI charges in D.C., contact the Scrofano Law, PC at 202-765-3175.