Implied consent: what it means and why a test refusal has its own license consequence

Implied consent is a statutory rule that treats a driver as having agreed, in advance, to a chemical test if the driver is later arrested for an impaired-driving offense. The consent comes from the law itself, not from anything the driver signs at the roadside.

Texas's statute, for example, covers a person arrested for an offense based on acts alleged to have been committed while operating a motor vehicle in a public place, or a watercraft, while intoxicated, or for a listed Alcoholic Beverage Code offense. That person is deemed to have consented, subject to that chapter, to the taking of breath or blood specimens. Arizona's statute provides that a person who operates a motor vehicle in Arizona consents to tests of blood, breath, urine or another bodily substance if arrested for a qualifying offense. The law enforcement agency chooses the test.

The Texas and Arizona statutes also address a person who is dead, unconscious or otherwise incapable of refusing: that person is treated as not having withdrawn consent. North Carolina's statute on operating a commercial vehicle after consuming alcohol shows the label in use. It declares that offense an implied-consent offense, subject to a separate cross-referenced provision.

A refusal has a license consequence of its own. It is handled apart from the criminal charge and by a different decision-maker. Texas's advisory statute requires the officer to warn that a refusal will lead to automatic suspension of the person's license, whether or not the person is later prosecuted as a result of the arrest.

Arizona's statute sets out the steps. After a refusal, the officer files a certified report with the state's motor vehicle department. Acting for the department, the officer then does one of two things: serves an order of suspension, or tells the person that the report will be submitted and that the department will send written notice if it enters an order. The officer also requires the person to surrender any Arizona license in their possession, and issues a temporary driving permit if a valid license is surrendered.

In Michigan, the officer must immediately give the person written notice that they may request a hearing within a period measured from the date of that notice. Michigan's statute provides that if no hearing is requested in time, the secretary of state imposes license sanctions. The statute sets out separate sanctions for drivers of commercial motor vehicles and for the vehicle group designations on a license.

Each statute names its own forum and its own trigger. In Arizona, the order of suspension tells the person that the department must receive a written or online hearing request within a stated period after the date of the notice, or the order becomes final. A timely request stays the suspension until the hearing is held. The department does not return a surrendered license, but it may issue temporary permits. If the suspension is upheld, the person may seek review by petition in the superior court.

The Texas advisory states that the person has a right to a hearing on the suspension or denial. To use it, the department must receive a written demand, or a request in another form the department prescribes, at its Austin headquarters within a period counted from the date the person receives the notice. A notice sent by mail is treated as received as provided by law.

Michigan's hearing is held by the secretary of state and covers only listed issues. These include whether the officer had reasonable grounds, whether the person was arrested, whether a refusal was reasonable, and whether the person was advised of the rights described in a cross-referenced provision. Arizona's hearing is similarly limited. One of its issues is whether the person was informed of the consequences of refusing.

The advisory is the set of warnings an officer gives before asking for a test. Texas's statute requires the officer, before requesting a specimen, to tell the person orally and in writing three things: a refusal may be admissible in a later prosecution, a refusal leads to automatic license suspension, and the officer may apply for a warrant to take a specimen. The Texas advisory also covers several other points: suspension after a test result at the level the Penal Code specifies, separate rules for younger drivers, denial of a license to a resident who has none, the hearing right, and preservation of a blood specimen. If the person consents, the officer asks them to sign a statement confirming that the request was made, the consequences were explained and the consent was voluntary.

Arizona's statute requires that a person who refuses be told their license will be suspended or denied unless they expressly agree to the test and successfully complete it. Failing to expressly agree, or failing to successfully complete the test, counts as a refusal. The officer's certified report must state that the person was advised of the consequences of refusing.

The criminal case is a separate proceeding in criminal court. Arizona's statute on blood and breath tests provides that evidence of a refusal is admissible in any civil or criminal action or other proceeding. This applies whether or not a sample was later collected under a search warrant or under another provision of that section. Whether the person refused is a question of fact for the judge or jury deciding the case. Arizona's implied-consent statute also provides that after a refusal, the test is not given except as a cross-referenced provision allows or under a search warrant.

Arizona's statute also limits the effect of the license ruling. If a refusal suspension is not upheld, that ruling is not admissible in, and has no effect on, any administrative, civil or criminal court proceeding.

New York's statute on chemical-test evidence shows how a compelled test can be challenged. A defendant who was compelled to take a test under a cross-referenced subdivision may move to suppress that evidence. The grounds are that the order was obtained, and the test given, in violation of that subdivision or other applicable law. A lawyer licensed in the state where the arrest occurred can explain how these rules apply to a particular case.

Deadlines, limits and penalty ranges are set by each state’s statutes, so this page does not state them. Each state page shows them with the official source and the date they were verified — or says plainly that a figure has not been confirmed yet.