Implied Consent Laws: Guide for 2025

What Is Implied Consent?

Driving under the influence (DUI) is a frustrating problem for legislators. They pass laws that prohibit drunk driving and impose mandatory minimum sentences punishing those convicted of the offense. However, DUIs continue to be a danger for every road user, including pedestrians. About 32% of all traffic deaths happen in drunk driving crashes.

Implied consent takes a different approach. Rather than punishing the driver, this doctrine removes them from the roads. The idea is that a person is less likely to drive while drunk if they cannot legally drive at all.

Every state has an implied consent law. When you apply for your driver license, you consent to take a chemical test if requested by a police officer. “Implied” means this consent is built into the driver’s license application.

Although every state has this kind of law, only 49 punish drivers for violating implied consent. Every state except Wyoming will automatically suspend your license for a test refusal.

This suspension will happen regardless of your blood alcohol concentration (BAC). In other words, you could be stone-cold sober, refuse a test, and still have your license suspended in these states.

Wyoming’s implied consent law does not punish drivers for refusing a test. However, it does allow the officer to compel a test after a crash involving injury or death or upon obtaining a warrant. It also permits automatic suspension of a driver’s license when a driver’s BAC is found to be over the legal limit.

How Implied Consent Works With DUI Laws

In practice, the implied consent process begins when a police officer develops probable cause to pull you over. This usually involves a traffic violation, such as driving too slowly or weaving. Many police departments document this violation using a dashboard-mounted camera.

An officer might also suspect intoxicated driving while investigating a car accident. Intoxicated drivers tend to react slowly and have poor control over the speed and direction of their vehicles. They also get confused and travel the wrong way on the freeway, causing head-on collisions.Victims of accidents caused by drunk drivers may also pursue civil compensation, with settlement amounts varying widely depending on the severity of injuries and the specifics of the case

The officer will further investigate by observing you and your vehicle. They might suspect intoxication due to any of the following:

• Your appearance, such as bloodshot eyes
• Slurred speech and confused responses to questions
• Smell of alcohol or marijuana
• Open containers of alcohol visible in your vehicle

The evidence may cause the officer to request field sobriety and chemical tests. DUI laws in every state include two violations.

First, you cannot drive while impaired by drugs or alcohol. The field sobriety test allows the officer to examine your reflexes, coordination, balance, and mental processing to help establish that you were driving while physically or cognitively impaired.

Second, you cannot drive while you have a BAC over the legal limit. This “per se” violation can occur even if you are not physically or mentally impaired. Instead, the only evidence needed to convict you of this type of DUI charge is a reliable breath, urine, or blood test result showing your BAC. While implied consent laws primarily target drivers, passengers can also be scrutinized in DUI investigations. For example, passengers drinking alcohol in the vehicle may prompt additional charges under open-container laws, depending on the state. Some states, like Nevada, treat open-container violations as misdemeanors, with penalties of up to six months in jail, further complicating the case.

Your Options in Implied Consent Law States

When the officer asks you to take a chemical test, they will remind you that implied consent means a driver agrees to submit to chemical testing upon request. If you refuse, the state will suspend your license, even if you recently obtained it. The officer will also inform you that even if you refuse, they can still arrest you and obtain a warrant to compel you to take the test.

By coupling DUI with implied consent laws, states limit the options for someone suspected of driving while intoxicated by drugs or alcohol. On the one hand, they can submit to the test and potentially give valuable evidence to prosecutors. On the other, they can refuse it, lose their license, and submit to the test under a court order.

Thus, drivers have few defenses against losing their licenses for an implied consent refusal. You could argue that the officer misunderstood you when they thought you refused the test.

You might also defend yourself if the officer lied about your refusal. Barring these unusual circumstances, you will likely face suspension or revocation of your driver’s license.

Is Implied Consent Legal?

Implied consent is based on two concepts. First, a driver’s license is a privilege and not a right. This means the state can set any reasonable and non-discriminatory standards for obtaining and keeping one. When there’s a violation of implied consent, such as a refusal of a breath, urine, or blood test, the state can take the license away.

Second, the Fifth Amendment to the U.S. Constitution prohibits the state from forcing you to testify against yourself. However, it does not prohibit the state from gathering evidence in your possession, even if it comes from your body. As a result, states can legally threaten to take your driver’s license to coerce you into taking a chemical test.

In other words, when it comes to implied consent, civil rights are not violated. The practice represents a proper exercise of power under the Constitution. However, the U.S. Supreme Court has limited the extent of private consent penalties.

While the Court has upheld states’ rights to impose consequences like suspending or revoking your driver’s license upon refusal, it struck down criminal penalties for refusing a blood test. The court reasoned that a blood test is so invasive the state cannot compel the driver by threatening prosecution.

As a result, many of the states with criminal penalties for an implied consent refusal have suspended enforcement of their laws. Others have amended their laws to remove the possibility of an implied consent charge.

Contact ConsumerShield to Learn More About Implied Consent Risks

Navigating a DUI arrest can be tricky, particularly when you face both DUI charges and a violation under the implied consent law. ConsumerShield helps people facing legal issues by educating them and referring them to lawyers for representation. Contact us for a free case evaluation.