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Implied Consent Law – What Is It and Must I Comply?

What exactly is implied consent? Implied consent is consent that is not expressly granted by a person. Rather, it is implicitly granted by a person’s actions and the facts and circumstances of a particular situation (or in some cases, by a person’s silence or inaction).

What is Implied Consent Law?

With so many laws out there, how is an ordinary citizen expected to know all of them? Legislators understand the difficulty in getting the common citizen to comply with laws. Thus, they have come up with statutes that are easier for everyone to remember. One of these statutes is implied consent law. This may be a law you haven’t heard of before, but it is just as binding as any other law in the books. It is also a law that you want to be informed about because not complying can carry heavy consequences.

What exactly is implied consent? Implied consent is consent that is not expressly granted by a person. Rather, it is implicitly granted by a person’s actions and the facts and circumstances of a particular situation (or in some cases, by a person’s silence or inaction).

An implied consent law is a law that compels drivers to comply with police officers’ requests for blood, breath, or urine samples in order to test the level of alcohol or drugs in their system.

Implied consent laws are designed to help prevent drunk driving accidents and promote public safety by removing impaired drivers from the road. Yes, you are bound by law to comply with implied consent laws. If you refuse to do so, you can be charged with an additional crime. There are some exceptions, though, which we will discuss in this article.

Example Of Implied Consent

An instance where implied consent would occur is when a police officer pulls somebody over for speeding. If the officer has reasonable suspicion that the driver is intoxicated, then they may ask the driver to step out of their car.

If you do not comply, you could face additional charges for refusing to comply with an officer’s request. The officer will ask the driver to exit their vehicle and submit to a sobriety test.

If the driver refuses, they cannot avoid getting charged for driving under the influence (DUI). Some states may also charge the driver for resisting arrest.

If you are arrested and taken to a jail or police station, then you will likely be asked to take a breath test or undergo blood testing to see if any drugs are in your system. If you refuse, you could face an additional charge of refusal.

Conditions For Implied Consent

There are two forms of implied consent: express and actual.

  • Express consent is when you explicitly agree with something because you were able to give an informed agreement that would not violate any laws.
  • Actual consent, on the other hand, is when you implicitly agree with something through your actions.


Under implied consent laws, you are required to submit to a chemical test if charged with an alcohol or drug-related offense. There are specific situations in which implied consent can be enforced and others where it cannot.

The following are examples of when implied consent can be enforced:

1. When you apply for a driver’s license, there is implied consent to provide breath, blood, or urine samples when arrested by a police officer for suspicion of driving under the influence.

2. When you drive in a state that has adopted an implied consent law, you are giving actual consent to take a chemical test.

3. If you are involved in an accident where the police believe your ability to drive was impaired, they can request you take a breath or blood test if it is part of their investigation.

Not Complying With Implied Consent

There are some instances when you may not comply with implied consent laws, including the following:

  1. You can refuse to take a chemical test. It will be considered a refusal even if you only refuse because of religious reasons.
  2. Refusing to take the chemical test is considered probable cause for an officer to arrest you. However, this is only true if the officer has reasonable cause to believe that you were driving while impaired by alcohol or drugs. You can still refuse to take a test. However, your license will then be suspended for 12 months (or 18 months if there was an accident involved).
  3. If you are not informed of the consequences of taking or refusing to take a chemical test, it will be inadmissible as evidence against you. It is not enough if the arresting officer simply forgets to tell you about these consequences.


Regardless of the situation in which you refuse to comply, you must realize that there may be consequences. Implied consent laws are not new to the criminal justice system. However, they do continue to be updated and refined.

Laws may vary by state, so it is important that you understand your rights before making any decisions regarding implied consent.

Exceptions To The Implied Consent Law

In a recent U.S. Supreme Court case, a divided court upheld a state’s right to force DUI suspects to submit to blood tests without their consent and without a search warrant.

However, this same law was later amended by the state legislature so that officers must get search warrants for blood tests of DUI suspects who have been injured in auto accidents. This exception to the law applies only to those drivers who have been involved in accidents and not to other suspects.

If you are under 21 years old and refuse a chemical test, your license will be suspended for at least six months (nine months if there was an accident). Again, this refusal can be used as a probable cause by an officer to make an arrest.

Or if you are physically unable to provide a sample, you can request that the test be done via Alternate Methods of Collection (AMOC). Some methods include using sensors on your body while another involves collecting fluid through a catheter or needle inserted in your arm or hand.

Informed Consent

We should also discuss informed consent and how that is different.

Informed consent means that the arrested person is clearly informed about the consequences of chemical testing. Also, he or she must have agreed to them without being coerced into doing so.

For example, if you are placed under arrest for DUI, you are required to submit to a chemical test. If you refuse without being told that your license is going to be suspended, this refusal will not stand up in court This is because you were never given informed consent.

However, if you are clearly told about the consequences of refusing or complying with a chemical test and if you freely choose to refuse without being coerced, then your refusal may be admitted as evidence against you at trial.

There are 4 components of informed consent including:

  • decision capacity
  • documentation of consent
  • disclosure
  • competency

Does Implied Consent Law Only Apply To Driving?

The implied consent law was initially used for motor vehicles. However, it can be applied to other forms of transportation too.

The term “motor vehicle” includes all types of land-based conveyances such as cars, trucks, and motorcycles. However, it also includes boats and ships that travel through waterways such as rivers or lakes. Implied consent laws have even been used to prosecute a drunk snowmobiler.

As a general rule, though, implied consent law applies only to those who drive or operate a motor vehicle on public highways or waterways.

Does Every State Have Implied Consent Laws?

Every state has some form of implied consent laws, but they vary. Some states have the same consequences as those stated above for refusing to take a chemical test such as losing your license or facing criminal charges such as jail time if you refuse to take a test.

However, other states require that police prove that there was probable cause for an arrest before the refusal can be used.

Is Implied Consent Unconstitutional?

Many states’ implied consent laws were created with the premise that drivers are required to cooperate with police for the common safety of shared public spaces. However, some civil rights groups and criminal defense attorneys think that these laws violate a person’s Fourth Amendment right against unreasonable search and seizure.

The argument is that you should not be required to give up your constitutional rights just because you choose to drive on public roads. However, the U.S. Supreme Court has upheld such implied consent laws in a number of cases.

Some courts have found these laws unconstitutional based on the argument that people should not lose their license or be arrested if they choose not to take a test without proper legal advice.

To this end, some states have enacted laws that tell police officers that they MUST inform suspects of their rights before asking them to submit to chemical tests.

For The Greater Good

Some may have mixed opinions on this law. However, it is overall for the common good of all drivers who share the road. With this law, you know the consequences if you get arrested for driving under the influence.

The law is not only for the safety of yourself but for those around you who could be injured by your decision to drive a car after drinking. So the greatest lesson here is to not drive intoxicated or under the influence. And if you do, know that implied consent law exists and you must comply with it.

Written By

Matt has over 10 years of legal writing experience. He's worked and written for legal websites for serval websites including Truskett Law, Bruner Law, Jeffrey & Erwin, Gary Crews, PLLC., Deposition Academy, and Wagner & Lynch.


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