What is Implied Consent?
Clients often ask me what “implied consent” means. Implied consent states that anyone who drives on Connecticut’s roads allows the testing of blood, breath, or urine. If the driver is a minor, the parent(s) or legal guardian are considered to have given consent. Before administering a chemical test for blood, breath, or urine, a police officer must:
- Inform the driver of their constitutional rights.
- Give the driver an opportunity to call a lawyer.
- Inform the driver that their license will eventually get suspended if they refuse to take the test.
- Inform the driver that evidence of a refusal may get used against them in a criminal prosecution.
The administrative per se implied consent law requires license suspension procedures for drivers who refuse to submit to a chemical test. This also applies to those who have a result that indicates an elevated BAC above the legal limit. In these types of cases, the police act on behalf of the DMV. They can revoke the driver’s license for 24 hours. They will submit a report of what happened to the DMV. The report has to include any test results and the basis for why the officer made the arrest. If there is an implied consent test refusal, a third party like a police officer must sign the report.
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Blood Alcohol Content (BAC) Testing
The DESPP Commissioner has to determine the reliability of the various methods used to test blood, breath, and urine. The Commissioner certifies those used within the state of Connecticut. The Commissioner has to adopt regulations that govern the conduct of tests. They also certify operation and use of the devices, and the training and certification of test operators. The DESPP Commissioner also regulates the drawing of blood, breath, or urine samples. Any evidence that a driver refused to submit to a test is admissible if the procedural requirements of the statute are met. At trial, the court must instruct the jury on what inferences it can or cannot make based on a refusal.
You should note that a different set of admissibility standards apply to blood and urine samples taken from a driver during the course of medical treatment. Results from the chemical analysis of the blood and/or urine samples can constitute evidence. They establish probable cause for the driver’s arrest by warrant and can be used in a prosecution if:
- The sample occurred for the diagnosis and treatment of an injury.
- A blood sample taken was within the DESPP guidelines.
- A police officer satisfies a Superior Court judge that the officer had reason to believe that the driver was operating under the influence of alcohol or drugs and the blood or urine sample constitutes evidence of this offense.
- The judge issues a search warrant authorizing the seizure of test results and possibly the additional seizure of hospital medical records prepared along with the diagnosis and treatment of the injury.
Using Blood Tests Against a Defendant
It is not common knowledge that blood drawn at hospitals will come into evidence against a defendant. Many times, my clients don’t understand that when blood gets drawn, it can later become evidence. It can become evidence for an arrest warrant for DUI, even months after the initial incident. Sometimes, however, problems arise with the identification of the person who drew the defendant’s blood.
Police officers can determine a motorist’s BAC levels by testing their blood, breath, or urine. The police can choose the type of test given. The law establishes a presumption that a driver’s BAC at the time tested is the same as when they were stopped by the police. The law requires two tests at least 10 minutes apart.
Blood Test Procedures
Procedurally, a different set of standards apply when someone gives either a blood or urine sample at a police officer’s request because these tests require laboratory analysis. As a result of this requirement, the police officer cannot immediately take possession of the driver’s license or follow elements of the per se law. If test results come back showing a BAC over the legal limit, the officer immediately notifies the DMV and submits the required paperwork.
For 16 and 17-year-old drivers, the law imposes a stricter limit of .02 BAC level. A police officer, acting on behalf of DMV, has the authority to tow the vehicle and seize the driver’s license, which is technically suspended for 48 hours beginning at the time of arrest or issued summons. In order to get the license back, a parent or legal guardian of the driver (unless emancipated from their parents) has to:
- Appear in person at the police station or state police barracks.
- Sign a document acknowledging the return of the license.
A restoration fee should not exist for the return of the driver’s license. The officer who acted on behalf of the DMV who seized the license must send a report to the DMV Commissioner. Also, any driver under the age of 18 who gets arrested and charged with DUI cannot apply for “youthful offender” (YO) status, in which first offenders are prevented from getting tried as adults.