What is Implied Consent Law – Difference between Implied Consent Law

Once a driver has stopped on the DUI suspicions, the traffic officer on duty typically asks the driver to blow the tube through a breathalyzer to test and determine the current BAC – blood-alcohol concentration in a driver’s body.

According to the NHTSA – National Highway Traffic Safety Administration, not every suspected diver provides a test through a breathalyzer, and the Police officer on duty cannot force any driver to provide breath samples. A rough estimation at NHTSA says that above 20% of the drunk drivers in the United States do not agree to blow through the tube and provide BAC or any other test which determines the alcohol level of the driver when they are pulled over. The number varies from one state to another, as Delaware shows 2.4% and New Hampshire 81%.

Attorneys of DUI defendants generally take the absence of the BAC test in advantage to defend their clients. However, refusal of the test results can bring significant consequences.

What is the Implied Consent meaning?

The question often strikes in mind what is implied consent? The term implied consent defines a situation where a person has consented to something by his actions without making verbal or written consent. This particularly means that whether the person has not accepted through his verbal or written consent, the existence of the circumstances made the other person believe that the activity had happened and the suspect has consented. With the implied consent, the person gives automatic permission to law enforcement officers to conduct field sobriety and chemical tests in the event of a DUI stop.

Implied consent issues arise in many fields including contracts, medical care, and most commonly in criminal activities where the criminals are not conscious enough most of the time to give verbal or written consent.

Implied Consent Laws

According to the implied consent state laws, when motorists apply for a driving license, they automatically provide consent that they will give field and chemical tests once pulled over in suspicion of impairment. If suspects are pulled over in reasonable suspicion of impairment by an officer, the driver’s refusal to provide BAC tests will automatically put him or her in possible penalties which include license suspension.

Ramifications against a BAC test refusal may vary from state to state, which normally explains the inconsistency in the rate of refusal among states. However, most of the states impose automatic 6 to twelve-month license suspension on a refusal of BAC or chemical test. If the suspect has prior DUI convictions, then the penalties or punishments can increase significantly and on high BAC results, the suspect can be sent even behind the bars. License cancellation due to a refusal can also cause your driving insurance policy to be canceled through your license company. Plus, many states potentially increase the penalties if the suspect was caught driving under influence and also refused to provide a BAC test at the spot.

However, the laws against the implied consent in DUI cases are mostly challenged due to several civil rights reasons. People with charges of DUI have claimed that the BCA or other chemical tests including blood and urine tests are taken forcibly that specifically violated the right of unreasonable seizure or search given by the Fourth Amendment and the avoidance right to self-incrimination by the Fifth Amendment. Generally, the court has defined the implied consent law as constitutional and invalidated the laws allowing states to revoke the driver’s license without hearing or trial.

Possible Penalties against refusing a Breathalyzer Test

Refusal of a BAC test comes with suspension penalties that may vary state to state and according to the severity of the applicable DUI circumstances. To determine how long your driver’s license will remain suspended depends on several elements but greatly on the arrest in case of drunk driving or violations against the implied consent. Your 10-years history can be taken into account for the DUI violation. If appeared, you can expect to receive:

  • First refusal: jail time of 1-4 months
  • Second DUI conviction or Refusal: 12 – 18 months
  • Third DUI conviction or Refusal: 24-36 months
  • Fourth DUI conviction or Refusal: 60 months

Along with these convictions after refusal of the submission of the BAC test, possibly you have to answer the drunk driving charges. You can also expect to face:

  • Probation
  • Jail time
  • Community service
  • Fines
  • Driver’s license suspension
  • Alcohol drug mandatory treatment

Implied Consent Legality in DUI Cases

Since the implied cases against DUI convictions are mostly questioned, the court implemented two philosophies concerning the legality of implied consent in DUI cases:

Driving is considered to be a privilege – No driver has the constitutional right to drive on the public highways and roads unless they obey the driving laws including DUIs. People complying with the laws will be privileged.

Power of state’s police – Putting pressure on the society’s interest against the actions of an individual violating the laws through DUIs, the court has defined that drivers are undoubtedly a menace to society. This is why the implied consent laws are supposed to be the judicious assumption to put the power of police in place.

  • Drunk Driving Implied Consent

As mentioned above, laws for driving licenses obtain the surety that the driver will comply with the requirements of the BAC tests to determine whether he should remain privileged or not by avoiding driving under any alcoholic or any other influential substance.

This is the reason why the court has made the implied consent constitutional and given the power to the police to put society’s interest first and imposed the responsibility to protect the local property and public from life threats, personal injuries, and even property damages.

  • Medical Consent

Consent comes in many other forms. If consent is needed before performing the medical treatment, there would be two types of consent that the medical officer may need – (i) implied consent (ii) informed consent.

Implied consent in healthcare would need the consent of the patient is non-verbal or nodding communication is severe injuries.

  • Informed/Express Consent

The consent requires the patient to be fully informed of his condition and the available treatment options and choices to make sure that the patient is informed of his medical care. The informed consent can only be given to the adult patients who are 18 years of age and above so they can be able to understand what treatment and information are given to them so they would make an effective and well-informed decision for themselves.

Informed consent is explained verbally, but before the treatment takes place, it typically requires a signed document beforehand. For a minor, the consent would be signed by a legal guardian or from his parents.

Informed Consents involving Medical Malpractice Claims

Precisely, most medical malpractice cases are the results of a lack of informed consent provided to the patients. But for this, the patients have to prove that lack of informed consent both verbally and signed documents caused personal injury or medical damages to the patient.

Medical officers have legal responsibilities to provide a patient with the following information:

  • A detailed overview of the health condition that a patient requires treatment for
  • A discussion or the description of the treatment or procedure that a doctor has suggested or prescribed.
  • An explanation about the treatment or procedure like how it would be conducted
  • Discussion over the possible risks involved in the procedure
  • Discussion of the possible benefits linked with the suggested treatment
  • Information about the possible risks that the patient may face if the treatment is refused
  • The possible complications and results that the doctor anticipates after completing the procedure or treatment.
  • The choices that a patient can make if refuses to take the decision
  • An explanation why the medical officer thinks that the suggested treatment is necessary and the patient should opt for it.

By providing detailed information about the treatment or procedure to the patient, the doctor allows a patient to make a rational yet informed decision regarding his healthcare.

If you believe that your doctor did not explain the required information and there was a lack of informed consent that caused potential injuries, you should speak to a medical malpractice attorney. A medical malpractice attorney will review your injuries and determine the legal abnormalities to analyze the type of consent required for the case and if the doctor met the obligations.

Keep in mind that you need to suffer from the damages in case you want to claim medical malpractice. Unable to sustain personal injury or any physical damage can hold you back from receiving compensation against a medical malpractice case no matter if your doctor was negligent.


Either you are privileged to drive on public roads or you are up to receiving medical treatment, it is your responsibility to keep yourself informed about the state consent laws. You may lose your driver’s license if you don’t comply with the implied consent laws for DUI executions and can leave the right to claim a medical malpractice claim if you don’t know your legal informed consent rights.

It is always better to consult a legal practitioner before you opt for a plea against your driver’s license revocation or to claim malpractice so your legal and constitutional rights can be protected. 

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