California Implied Consent Law (VC 23612): DUI Test Refusal & License Suspension

California’s implied consent law means that anyone who drives on public roads is considered to have agreed to chemical testing if they’ve been lawfully arrested for DUI.

However, implied consent only applies after a lawful DUI arrest. During a roadside traffic stop, most drivers may decline field sobriety tests and the preliminary alcohol screening (PAS) breath test.

Key Takeaways

California drivers automatically agree to chemical testing after a lawful DUI arrest under Vehicle Code §23612.
Refusing a breath or blood test can trigger license suspension or revocation under Vehicle Code §13353.
If someone refuses to submit to testing, police can seek a search warrant for a blood draw.

Drivers on California roads must submit to a blood or breath test to measure their BAC (blood alcohol concentration) after a lawful DUI arrest. If you refuse testing, the police officer may take possession of your driver’s license and issue a temporary license that’s valid for 30 days. During that time, the California Department of Motor Vehicles (DMV) will initiate the administrative license suspension process.

Refusing a chemical test can also lead to additional penalties if you’re ultimately convicted of DUI.

Related: DUI penalties in California

Under California Vehicle Code §23612, any person who drives a motor vehicle in California is considered to have already consented to chemical testing of their blood or breath if they are lawfully arrested for driving under the influence.

Under California law, this consent is considered automatic when someone chooses to drive on public roads.

Chemical testing is commonly used to determine whether a driver’s blood alcohol concentration (BAC) exceeds the legal limit of 0.08% for drivers 21 and older, but it may also be used to investigate drug-related DUI offenses.

California’s implied consent law applies when a driver has been lawfully arrested for driving under the influence under California Vehicle Code §23152 or related DUI statutes.

Examples of DUI charges that may trigger the implied consent requirement include:

Vehicle Code §23152(a): Driving under the influence of alcohol
Vehicle Code §23152(b): Driving with a BAC of 0.08% or higher
Vehicle Code §23152(f): Driving under the influence of drugs (DUID)
Vehicle Code §23152(g): Driving under the combined influence of drugs and alcohol
Vehicle Code §23153: DUI causing injury
Vehicle Code §23140: Under-21 DUI (BAC of 0.05% or higher)

If police have probable cause to arrest you for one of these offenses, you are required to submit to a chemical breath or blood test under California’s implied consent law.

Implied consent only applies under specific circumstances.

You Must be Lawfully Arrested for DUI in California

Implied consent does not apply during a routine traffic stop. The law only kicks in after someone has been lawfully arrested for DUI. If the police didn't follow the appropriate protocols during your arrest, we can challenge the legality of the refusal allegation or license suspension.

You Must be Driving in California

Implied consent applies to anyone operating a motor vehicle on California roads or highways. When someone is lawfully arrested for DUI, the police officer may require a chemical test under the state’s implied consent law. You do not have to be a California resident.

What Tests Can Police Require?

In alcohol-only DUI cases, drivers are usually allowed to choose between a breath or blood test after a lawful arrest. However, officers may require a blood test if drug impairment is suspected, if breath testing is unavailable, or in certain other circumstances.

If police think someone might be on drugs, they often ask for a blood test. This is because breath tests can only show if someone has been drinking alcohol. They cannot detect other types of drugs.

Urine testing is rarely used today, but it may be required when blood or breath testing is unavailable or when certain medical conditions prevent blood testing.

Can You Refuse to Take a Breath or Blood Test After Your Arrest?

California lawmakers have imposed harsher penalties for refusing chemical testing because the alcohol levels in your blood decrease over time. The legislature has implemented penalties intended to discourage drivers from delaying or preventing the collection of chemical evidence.

In practice, the driver can refuse testing. However, saying no to chemical testing can trigger some serious consequences.

First refusal: A one-year driver’s license suspension, which may significantly limit eligibility for restricted driving privileges.
Second refusal (within 10 years): A two-year license revocation
Third refusal (within 10 years): Three-year license revocation

These penalties apply even if you are never convicted of DUI in court.

In some cases, a driver who initially refuses testing but quickly changes their mind and agrees to take the test may avoid a refusal finding, depending on the timing and circumstances.

Field Sobriety Tests vs. Chemical Tests

These tests seem similar, but they aren’t the same.

Field sobriety tests are completed at the site of your traffic stop and are generally voluntary
Chemical testing: After a lawful DUI arrest, California drivers are required to submit to chemical testing. Drivers can refuse, but refusal carries significant legal penalties.

Breath Test Rules in California

California has two types of breath tests:

PAS (Preliminary Alcohol Screening) at roadside traffic stops
Evidentiary breath test (Breathalyzer) after arrest

For most drivers age 21 and older who are not on DUI probation, the PAS test is optional during a roadside stop.

Drivers under 21 and drivers already on DUI probation may be required to take the PAS test.

Related: DUI breath test issues

Can Police Take Your Blood Without Consent?

In many situations, yes.

If you say no to a chemical test, the police may ask a judge for a search warrant to obtain a blood draw.

Once a warrant is issued, refusing to cooperate generally will not prevent police from obtaining a sample.

What the DMV Must Prove in an APS Hearing

In refusal cases, the DMV must prove:

The officer had reasonable cause to believe you were DUI
You were lawfully arrested
You were properly advised that refusing chemical testing would result in license suspension or revocation
You refused or failed to comply with the required chemical test.

Criminal Refusal Enhancements

Refusal allegations can increase DUI penalties under Vehicle Code §23577 if prosecutors prove the refusal under California law, including:

Mandatory jail time
Longer DUI education programs
Increased sentencing exposure

Implied consent establishes the legal requirement to submit to testing.

The DMV has a system called Administrative Per Se, or APS for short. This system enforces penalties when someone refuses to take a test or if their test results show they are over the legal limit.

Here’s how the two systems connect:

Implied consent requires drivers to submit to testing after a lawful DUI arrest. If you don't take the test, the DMV can take possession of your driver’s license and issue a temporary license valid for 30 days, according to Vehicle Code §13353.

If you want to challenge a license suspension, you have 10 days from your arrest to request an APS hearing. After you’ve requested a hearing, the DMV will delay the license suspension until the hearing takes place upon request.

The APS hearing allows you to contest the suspension, though the DMV administrative case is separate from the criminal DUI case. The outcome of one proceeding does not automatically determine the result of the other.

Beating the APS hearing is a big deal. It can stop your license from being suspended and also help with your criminal case. Many APS challenges are unsuccessful, but outcomes depend heavily on the facts of the stop, the arrest paperwork, and whether the officer properly followed implied consent procedures.

Real-World Example: Refusal in California

In practice, drivers have the option to refuse testing, but doing so can trigger serious consequences. Sometimes drivers may believe their refusal is justified. It’s important to understand that a refusal can result in a license suspension and that, eventually, the police will likely obtain a warrant for a blood sample.

For example:

“I refused everything, but they got a warrant for a forced blood draw. The DMV suspended my license for one year. My case ended with a wet reckless.”

Though this person ended up with a one-year license suspension due to their refusal, they said they didn’t regret their decision to refuse because it took time for the police to obtain the warrant for the blood draw, and that during that time, their BAC may have declined.

Implied consent laws affect several critical parts of a DUI case, including:

Whether your driver’s license is suspended
The evidence prosecutors can use
Whether a chemical test result can be challenged or excluded
Whether your arrest was lawful
Whether additional penalties apply for refusing testing

At Michael & Associates, our senior trial lawyers closely examine the circumstances of your case, including:

Whether the police had probable cause for the stop
Whether the DUI arrest was lawful
Whether officers properly advised the driver of refusal consequences
Whether search warrants for blood draws were valid
Whether breath or blood testing procedures were reliable

Problems with any of these steps can lead to suppressed evidence, reduced charges, or even a case dismissal.

We also handle all types of drug crime, theft, and assault charges.

FAQs

Can you refuse a breath test in California?

Yes, but only in specific circumstances. During your DUI traffic stop, you can still refuse the PAS (preliminary alcohol screening) breathalyzer test and standardized field sobriety testing. However, after a lawful DUI arrest, California’s implied consent law requires you to submit to blood or breath testing.

What happens if you refuse chemical testing in California?

Refusing the blood or breath test after a lawful DUI arrest can lead to automatic penalties under California Vehicle Code §13353.

Standard penalties include:

First refusal: A one-year license suspension, typically with no eligibility for a restricted license during that period (though ignition interlock options may apply in some cases).
Second refusal (within 10 years): 2-year license revocation
Third refusal (within 10 years): 3-year license revocation

These penalties will apply even if you’re never convicted of DUI.

Can police take your blood if you refuse a DUI test?

Yes. If you refuse chemical testing, police may obtain a warrant for a blood draw. Once a judge approves the warrant, a blood draw can be completed by force if necessary.

Sources: Michael & Associates research, California Department of Motor Vehicles; California Legislative Information; California Vehicle Code, Reddit.

What is Implied Consent in California?

Michele Ferroni

Rebecca Stumpf

Key Takeaways