California DUI

Implied Consent

A defendant charged in a criminal complaint with drunk driving will also, in most jurisdictions, be facing parallel administrative or civil proceedings. These proceedings, usually requested by the driver, are held for the purpose of deciding whether to uphold a suspension or revocation of his driver's license, either for (1) refusing to take a blood-alcohol test, or (2) for taking one that reflects a blood-alcohol concentration of at least .08 percent. That suspension is usually imposed — and the license confiscated — by the arresting officer.

In effect, these latest examples of the double standard prevalent in the DUI field constitute a presumption of guilt. But, as with sobriety checkpoints, they are being upheld by the state courts. Due process, apparently, is afforded by the fact that the individual is given a temporary license, usually good for 30 days, and a written notice that he has the right to an administrative hearing on the issue if he so demands within a given period of time.

These relatively new summary suspensions are authorized by so-called implied consent laws, which are the direct result of the federal government's successful "carrot-and-stick" attempt to get the states to adopt relatively uniform laws on drunk driving. Incorporated into the Alcohol-Impaired Driving Countermeasures Act of 1991, the summary license suspension proceedings reflect the "new philosophy" imposed upon the states of implied consent laws. The previous implied consent laws of the various states were aimed solely at the driver refusing to submit to blood-alcohol testing, and were theoretically designed to discourage such lack of cooperation. The new federal approach, however, abandons that view and emphasizes instead the immediate removal of the driver from the highways — and a circumvention of the cumbersome criminal justice system. In effect, it creates a dual-track system of punishment (although the courts, to avoid nagging double jeopardy issues, like to refer to the suspensions as "administrative sanctions" rather than punishment). As of January 1999, first-offense administrative license suspensions ranged from as low as seven days (Virginia) to as high as one year (Georgia); ninety days appeared to be the most common period.

Although the original implied consent statutes passed decades ago were subject to procedural infirmities, today's statutes have largely survived broad constitutional attacks. Thus, for example, the admissibility of a refusal to submit to chemical testing has been held not a violation of the Fifth Amendment. South Dakota v. Neville, 459 U.S. 553, 103 S. Ct. 916, 74 L. Ed. 2d 748 (1983). The Sixth Amendment right to counsel has been held not to apply to proceedings where there is no risk of imprisonment. Argersinger v. Hamlin, 407 U.S. 25, 92 5. Ct. 2006, 32 L. Ed. 2d 520 (1972). For a discussion of the Fifth Amendment double jeopardy issue.

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California DUI