‘Implied Consent’ and How You Possibly Can Avoid a Suspension of Your California Driver’s License for Failing to Provide an Adequate Breath or Blood Sample

California has something called an “implied consent” law. This means if you are arrested for driving while intoxicated, it is implied that you have consented to a blood or breath test. Your refusal can trigger a suspension of your driver’s license. You may be able to avoid that license suspension, however, if you can show the DMV that your failure to provide a sample was due to a medical ailment not related to your intoxication. To make this argument, you’ll need to request a DMV hearing within 10 days of your arrest. Given the importance of driving privileges to most any Californian, a potential suspension is a very serious punishment and requires prompt and serious action, including retaining a skilled San Francisco DMV defense attorney.

R.G.’s case was one that involved a license suspension. R.G.’s encounter with a deputy sheriff began with a traffic stop for failing to lower his high-beam headlights. Things got worse for R.G. The deputy detected what he believed to be bloodshot, watery eyes and droopy eyelids. The deputy also perceived what he believed to be the smell of alcohol. R.G. performed some field sobriety tests and performed poorly. R.G. declined to take preliminary alcohol screening.

The deputy then gave R.G. the implied consent advisement and explained blood and breath tests. The driver chose a breath test but was unsuccessful in providing a sufficient breath sample. A phlebotomist arrived after that, but R.G. refused a blood test, according to the department. He also allegedly refused to take another breath test.

The DMV later suspended R.G.’s license. The driver timely requested a hearing. There, he argued that he should not have received a suspension, because he tried to cooperate with the police and give a breath sample, but that the machine would not register a result. The DMV decided that, if a driver was unwilling or unable to complete a breath test, then he was required to provide a blood sample. Because the driver refused, the suspension was permitted.

Even though R.G.’s case was a Southern California incident and one where the courts upheld the license suspension, there are some things that drivers in Northern California can take away from it if a Bay Area police officer pulls them over for suspected drunk driving. If your failure to complete a breath test was the result of a physical condition and your failure was not done willfully or intentionally, and the police did not offer you another test, then you may possibly be able to challenge your license suspension successfully. Also, if a medical ailment or injury left you incapable of making a choice between the blood test and the breath test, then that fact might allow you to avoid a refusal-triggered suspension as long as the ailment or injury was not related to your use of drugs or alcohol.

Furthermore, you may be able to escape a license suspension if you can show that the blood or breath sample request was not made pursuant to a valid arrest. Some years ago, a man’s license later suspended following a DUI arrest in the Northern California town of Garberville. In that case, the police did not actually witness the man driving a vehicle, so the court determined that the request was not connected to a valid arrest and the suspension could not stand.

A suspension of your driver’s license is a very serious and potentially very damaging penalty. If find yourself needing to challenge a decision to suspend your driving privileges, contact the skilled the San Francisco DMV defense professionals at Uthman Law Office right away. Attorney David Uthman has over 20 years of experience as a litigation attorney and almost a decade of experience as a police officer. We know the law and we know the system, and we know how to use them to get results for you. Call us today at (415) 556-9200 to schedule your FREE initial consultation to get the help you need.

More blog posts:

How the Police’s Failure to Give You an Admonition Can Help You in Your California DMV Case, San Francisco Criminal Lawyer Blog, March 20, 2018

The Risks You Take When You Handle Your DMV Driver’s License Suspension Case On Your Own Without a San Francisco Attorney, San Francisco Criminal Lawyer Blog, Feb. 16, 2018


Contact Information