Implied Consent Law and DUI in the US: BAC and Test Refusal

Photo: Scott L, CC BY-SA 2.0, via Wikimedia Commons

An implied consent law means that by driving in a state, you have already agreed to a breath, blood or urine test if police lawfully ask for one on suspicion of impaired driving. Every state has one. Refusing does not get you out of trouble: it usually brings an automatic license suspension or revocation of its own. This guide covers the BAC limits, what refusal means, and the stricter limits for drivers under 21.

Key facts

• NHTSA: driving with a BAC of 0.08 or higher is illegal in all 50 states, DC and Puerto Rico, except Utah, where the limit is 0.05 (in force since December 30, 2018).
• Drivers under 21 face much lower limits under zero tolerance laws. New York, for example, sets 0.02 to 0.07; California sets 0.01.
• You can be charged below 0.08 if your driving is impaired. New York treats a BAC above 0.05 as evidence of impairment.
• Refusing a chemical test leads to a separate penalty. Examples: at least a 1-year revocation and a $500 civil penalty in New York; a suspension of at least 1 year in Georgia.
• NHTSA notes that most states handle a refusal as an administrative action, separate from any criminal DUI case.

How implied consent works

1. Stop and suspicion. An officer stops you and has reason to believe you are impaired by alcohol or drugs.
2. Arrest or request. The officer asks you to take a chemical test (breath, blood or urine) under the state’s implied consent law.
3. You take it or refuse. A result at or over the limit can lead to an administrative suspension and a criminal charge. A refusal triggers its own penalty.
4. Two tracks. The license action (DMV) and the court case run separately. In New York, a DMV hearing can revoke your license for refusal even if you are found not guilty of the driving offense.

BAC limits at a glance

See zero tolerance laws for drivers under 21 for the rules on young drivers, and drugged driving and cannabis for drugs.

What happens if you refuse: examples

New York

• License suspended when you are arraigned on the charge.
• If a DMV hearing confirms the refusal: revocation of at least 1 year (18 months for commercial drivers) and a $500 civil penalty ($550 commercial).
• A refusal within 5 years of an earlier refusal or alcohol or drug violation: a $750 civil penalty and a longer revocation.
• Under 21: a first refusal also means at least a 1-year revocation.

Georgia

• Refusal leads to a license suspension of at least 1 year.
• The refusal can be used as evidence at trial.

Other states set their own suspension lengths, and many raise them for repeat refusals. Check your state handbook’s alcohol and drugs chapter.

DUI penalties: what to expect

A DUI (called DWI or OWI in some states) can bring license suspension, fines, jail, mandatory alcohol education, an ignition interlock device and much higher insurance costs. New York, for example, sets a separate aggravated DWI offense at a BAC of 0.18 or more. For new drivers, a DUI can also cancel a provisional license or delay the next GDL stage.

Common questions

Can I refuse a breathalyzer?

You can physically refuse, but under implied consent the refusal carries its own license penalty, such as at least 1 year in New York and Georgia. In some states, including Georgia, the refusal can be used against you in court.

Is the limit lower for new drivers?

For drivers under 21, yes: every state has a zero tolerance limit far below 0.08. Check your state guide for the exact figure.

Can I be arrested under 0.08?

Yes, if your driving is impaired. New York, for example, has a separate impaired offense for a BAC above 0.05.

Does implied consent apply to drugs?

Generally yes. Implied consent covers tests for alcohol and drugs, and blood or urine tests can detect drugs that a breath test cannot.

Will an out-of-state DUI affect my home license?

It can. States share driver records with each other. See points systems and license suspensions.

All national guides: learning to drive in the USA. State example: Arizona DUI and extreme DUI rules.

Sources

• National Highway Traffic Safety Administration, “Drunk Driving” (nhtsa.gov)
• National Highway Traffic Safety Administration, “Drive Sober or Get Pulled Over” (nhtsa.gov)
• National Highway Traffic Safety Administration, “Countermeasures That Work: Lower BAC Limits” (nhtsa.gov)
• National Highway Traffic Safety Administration, “Refusal of Intoxication Testing: A Report to Congress” (nhtsa.gov)
• New York DMV, “Chapter 9: Alcohol and Other Drugs” and “Chapter 2: How to Keep Your License” (dmv.ny.gov)
• New York DMV, “Penalties for Alcohol or Drug-Related Violations” (dmv.ny.gov)
• Georgia Department of Driver Services, “Drivers Manual, Section 10 Continued” (dds.georgia.gov)
• California DMV, “California Driver Handbook, Section 9: Alcohol and Drugs” (dmv.ca.gov)