Implied Consent is a term used to explain the implicit permission that folks from Alabama give to the State when they apply for and receive a driver’s license. When a person in Alabama receives a license to operate a motor vehicle, they agree to have that license suspended by the State if they refuse to submit to a chemical breath test if they are suspected of driving under the influence of alcohol. This same Implied Consent applies to all people who are driving motor vehicles on Alabama roads, regardless if they are licensed by the state, another state, or if they are unlicensed.
So, what happens if a person refuses a chemical test during a lawful vehicle stop by a law enforcement agent?
Implied Consent can be withdrawn by anyone, unless a judge has issued a warrant allowing law enforcement to extract a breath sample for the purposes of testing. Refusing a chemical test is 100% within your rights but there are consequences to be aware of. These consequences are essentially separate from those of a potential DUI conviction. Even if a DUI charge is dropped or if you are found not guilty, these consequences of not consenting to a chemical breath test can persist. Refusing to submit to a chemical test also carries another possible consequence.
- Per section 32-5-192 of the Alabama Code titled Chemical Test for Intoxication Act subsection C “…evidence of refusal shall be admissible in any civil, criminal, or quasi-criminal action or proceeding..”
Simply put, your refusal can be used against you, even if you are within your rights to refuse. The more tangible consequences of a refusal are license suspensions. Refusing a test will result in a 90-day license suspension. Some people argue that if you are pulled over on suspicion of a DUI, refusing a chemical test is the best course of action. This is because failing a chemical test also results in a 90-day administrative suspension of your license, but the prosecution will have a piece of ‘hard evidence’ pointing to impairment. A second or third refusal of a chemical test within 10 years of the first refusal results in a one-year suspension.
The punishments associated with withdrawing of implied consent are not applicable unless you are under arrest and the chemical test is the test designated by the law enforcement agency. In the heat of the moment, you may not know or be able to find out if the test the officer is attempting to use is the test designated by the agency and it is never safe to assume in these situations. However, you have the right to ask if you are under arrest. If the answer is that you are under arrest, the officer already believes that they have probable cause that you were driving under the influence of alcohol. Further, in many jurisdictions in Alabama, officers will seek a warrant to draw blood and have that blood tested for alcohol content and concentration.
Without a warrant, never let anyone in law enforcement take your blood. But, the choice of whether or not to submit to a chemical breath test is yours to make and right or wrong depends entirely on the independent facts and circumstances of your situation.
Will you have to install an IID?
If found guilty of a DUI (convicted) then an IID is mandatory if there was a chemical test refusal. An Ignition Interlock Device (IID) is placed in your car. It is essentially a personal breathalyzer test. An IID measures your breath’s BAC and allows or prevents your car from starting based on the results. A person who is convicted of a DUI and refused the chemical breath test can be subject to longer IID requirements.
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