Few areas of California DUI law create more confusion — and more avoidable damage to defendants — than implied consent. Drivers regularly refuse tests they should have taken, take tests they could have refused, and conflate field sobriety tests with chemical tests in ways that significantly worsen their case. Implied consent applies only after a lawful DUI arrest, only to specific chemical tests, and triggers specific escalating penalties for refusal that operate independently of the criminal DUI case itself. Understanding these distinctions matters before an arrest happens, not after. The Law Office of Nic Cocis defends DUI cases throughout Murrieta, Temecula, Menifee, Lake Elsinore, Wildomar, Winchester, Canyon Lake, and French Valley, with cases heard at the Southwest Justice Center.
What “Implied Consent” Actually Means Under California Vehicle Code § 23612
California Vehicle Code § 23612 provides that any person who operates a motor vehicle in California is deemed to have given consent to a chemical test of their blood or breath for the purpose of determining alcohol content — once they are lawfully arrested for driving under the influence. The consent is implied by the act of driving; the driver does not have to sign anything, agree verbally, or acknowledge the law for it to apply.
Three points define what implied consent does and does not cover:
- It applies only after a lawful arrest. Before arrest, the implied consent statute is not yet triggered.
- It applies to a chemical test of breath or blood. The driver generally has the right to choose between breath and blood.
- It does not apply to field sobriety tests or to the pre-arrest PAS test for most drivers. Those are separate analyses governed by different rules.
The third point causes the most damage in DUI cases. Many drivers refuse the post-arrest chemical test believing they have already refused “the test” at roadside. They have not. The roadside refusal — if it was the FST or the PAS test in a permissive category — typically carries no consequence. The post-arrest refusal triggers serious consequences. The two are not the same test.
Field Sobriety Tests and the PAS Test Are Not Implied Consent
Before arrest, an officer who suspects DUI may ask the driver to perform several procedures. None of these are implied-consent tests:
Field Sobriety Tests (FSTs). The standardized battery — Horizontal Gaze Nystagmus (HGN), Walk-and-Turn, and One-Leg Stand — plus various non-standardized exercises (counting, alphabet recitation). FSTs are voluntary. Refusing them is not a separate offense, does not trigger license suspension, and does not constitute refusal under VC § 23612.
The Preliminary Alcohol Screening (PAS) Test. Conducted with a handheld breath device at the roadside, the PAS test is administered before arrest. Under VC § 23612(i), the PAS test is voluntary for drivers 21 and older who are not currently on DUI probation. For drivers under 21 or for drivers on DUI probation, the PAS test is mandatory, and refusal carries the same consequences as refusal of a post-arrest chemical test.
A driver who is 21 or older, not on DUI probation, and not under arrest may decline FSTs and the PAS test without triggering the refusal penalties — though the officer can still make an arrest based on other observations (driving pattern, demeanor, odor of alcohol, statements).
What changes at the moment of arrest. Once the driver is lawfully arrested for DUI, implied consent applies and a chemical test of breath or blood is required. Refusal at this point — after arrest — carries the consequences described below.
Birchfield v. North Dakota and the 2017 Amendment to VC § 23612
In 2016, the U.S. Supreme Court decided Birchfield v. North Dakota, 579 U.S. 438. The decision restructured how states can constitutionally implement implied consent laws:
- Breath tests are a search incident to a lawful arrest. No warrant is required, and states may criminalize refusal of a breath test.
- Blood tests are more intrusive. They require either a search warrant, valid consent, or specific exigent circumstances. States cannot criminalize refusal of a blood test without a warrant.
California amended VC § 23612 in 2017 to comply with Birchfield. The current statute provides that the officer must inform the driver that, if the officer has probable cause to believe the driver is under the influence of drugs (or a combination of drugs and alcohol), a blood test is required — and that a warrant will be obtained if the driver refuses.
The practical effect for Riverside County drivers. Refusing a blood test does not actually prevent the blood draw in most cases. Riverside County law enforcement uses electronic warrants — an “e-warrant” — for blood draws after refusal. A judge signs the warrant remotely, often within minutes, and the blood draw proceeds. The driver who refused now faces the refusal enhancement AND the blood test result. The refusal protected nothing and added penalties.
For breath tests, refusal still triggers the implied-consent penalties, but no warrant is required for the officer to ask in the first place — the breath test is a search incident to the lawful arrest.
The Penalties for Refusing a Chemical Test
Under California Vehicle Code §§ 13353 and 23577, refusal of a chemical test after a lawful DUI arrest triggers both an administrative penalty through the DMV and an enhancement to any subsequent DUI conviction.
DMV administrative consequences (separate from any criminal case):
- First refusal: 1-year hard suspension of the driver’s license. This is critical — the refusal suspension does not permit a restricted license during that year. A regular first-DUI suspension may allow a restricted license for work or treatment after a short period; the refusal suspension does not.
- Second refusal within 10 years: 2-year revocation
- Third refusal within 10 years: 3-year revocation
Criminal court consequences (enhancement to the DUI conviction):
- First DUI with refusal: Additional 48 hours in jail, additional fines, and a longer mandatory DUI education program
- Second DUI with refusal: Additional 96 hours in jail
- Third DUI with refusal: Additional 10 days in jail
- Fourth DUI with refusal: Additional 18 days in jail
Refusal as evidence at trial. Beyond the formal penalties, the refusal itself can be argued to the jury as consciousness of guilt — the prosecution’s theory being that the defendant refused because they knew they were over the limit. The defense can rebut this argument, but the inference is one the jury is permitted to draw.
These penalties run regardless of whether the defendant is ultimately convicted of the underlying DUI charge. A defendant who is acquitted of the DUI but properly refused chemical testing still faces the 1-year hard suspension from the DMV.
The DMV and Criminal Court Are Two Different Proceedings
A DUI arrest with a refusal allegation triggers two parallel proceedings, each with its own deadlines:
- The criminal case — filed by the Riverside County District Attorney’s Office, heard at the Southwest Justice Center
- The DMV Administrative Per Se hearing — handled by the California Department of Motor Vehicles, addressing the license suspension separately from the criminal case
A driver has 10 days from the date of arrest to request the DMV hearing. Missing this deadline waives the right to challenge the license suspension administratively. The 10-day rule applies whether or not the driver has retained counsel; it cannot be extended. We discuss the DMV hearing process in detail in our vehicle impoundment post, which also covers the parallel 10-day deadline for challenging vehicle impound under VC § 22852.
When a Refusal May Not Be a Refusal — Defense Strategies
Not every alleged refusal is a valid refusal for purposes of triggering the penalties. The defense in refusal cases focuses on whether the prosecution can prove the elements of a statutory refusal. The most productive areas of challenge include:
Failure of the implied-consent admonition. Under VC § 23612, the officer must properly advise the driver of the consequences of refusal. The admonition has specific required elements — informing the driver that refusal will result in a one-year suspension or longer, that the driver does not have a right to consult an attorney before deciding, and other statutory points. If the admonition was deficient, the refusal may not be valid.
Confusion as to which test is being requested. Where the officer has presented FSTs, a PAS test, and a post-arrest chemical test in quick succession without clear delineation, the defense can argue that the driver’s “refusal” was actually a refusal of a non-implied-consent procedure.
Medical inability. Drivers with asthma, COPD, or other respiratory conditions may be physiologically unable to provide an adequate breath sample for the chemical test. Where this is documented, the defense can show that the driver did not refuse — they were physically unable — and the appropriate procedure was for the officer to offer a blood test instead.
Anxiety, panic, or intoxication interfering with comprehension. In limited circumstances, where the driver’s mental state at the time of the alleged refusal prevented meaningful comprehension of the admonition, the defense can challenge whether the refusal was knowing.
Forced blood draws without proper warrant. Where a blood test was performed without a valid warrant and without true consent, the breath and blood test challenges extend beyond just the refusal — the test result itself may be subject to suppression.
These defenses are not available in every case. But in cases where the officer’s documentation is thin, the admonition is incomplete, or the procedural sequence was confused, refusal allegations can be successfully challenged.
What to Do After a DUI Arrest with a Refusal Allegation
If you have been arrested for DUI and the arresting officer alleges refusal:
- Calendar the 10-day DMV deadline immediately. Request the DMV hearing in writing within 10 days of the arrest date.
- Preserve your recollection of the admonition. Write down what the officer said, when, and how. Memory fades. The details matter.
- Document any medical conditions that may have affected your ability to provide a breath sample.
- Do not discuss the case with the arresting agency or with anyone else other than your attorney.
- Retain a DUI defense attorney immediately. The 10-day window closes whether or not you have counsel.
Talk With a Riverside County DUI Defense Attorney
A refusal allegation transforms an ordinary DUI case into a more serious one — adding mandatory jail time, a hard 1-year suspension with no restricted license option, and a consciousness-of-guilt argument the prosecution will make at trial. None of these consequences are automatic; each can be challenged. But the challenge starts with the 10-day DMV deadline and depends on the quality of the defense work in the days immediately following arrest.
Learn more about attorney Nic Cocis and his 25+ years of trial experience defending Riverside County DUI cases.
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