What Does “Implied Consent” Mean with Regard to DUIs?

March 06, 2023

How Does Implied Consent Work?

While every state has slightly different laws, the overall basis for implied consent laws rests on the fact that the state deems driving to be a privilege and not a right. Therefore, when you get a driver’s license or travel on roadways, the state grants you the privilege of driving. Your continued ability to do so depends on fulfilling certain requirements. One of these stipulations is your implied consent to submit to testing for substances that could impair your driving if you are lawfully arrested under suspicion of a DUI. By simply obtaining a driver’s license or taking your vehicle out on the road, you implicitly agree to abide by this rule.

A knowledgeable criminal defense attorney can explain what you need to know about implied consent laws and DUIs in South Carolina and Georgia. If you are facing penalties for refusing a chemical test, contact us today to speak to a defense lawyer who will fight for your rights.

What Are an Officer’s Responsibilities When Administering a Breath Test?

The Fourth Amendment states that every US citizen has the right to be free from “unreasonable searches and seizures.” A required breathalyzer test may feel like an unreasonable search of your person by law enforcement, but it is legal due to implied consent laws, as long as officers follow certain requirements.

First, law enforcement must show that they had reasonable suspicion to pull you over for a traffic infraction even if it is a pretext for a DUI investigation. For example, erratic driving could give officers a reason to stop you. Second, they must lawfully arrest you on suspicion of driving under the influence before implied consent laws come into play. Officers may ask you to perform field sobriety tests to determine if you are impaired before they arrest you, but these tests are generally not covered by implied consent, and you are within your rights to refuse them.

Officers must also take state-specific steps before they can administer breath tests. Failure to closely follow these requirements can render test results inadmissible as evidence.

South Carolina

The officer arresting you for allegedly driving under the influence must ensure their video recording equipment is on while they verbally inform you of the state’s implied consent laws and provide you with a written copy. This step is crucial because it gives you the necessary information to make an informed decision on whether or not to agree to testing. However, not all officers remember to do this, which can result in your implied consent violation being overturned if you refused testing.

Several other laws also pertain to chemical testing requirements. The officer must perform the breath test within two hours of the arrest. Additional chemical tests, such as blood samples, must be taken within three hours of arrest. The individual performing the breath test must be trained and certified by the South Carolina Criminal Justice Academy.


The arresting officer must read you the correct Implied Consent Notice for your age and driver’s license status in its entirety. There are three different versions of this notice in Georgia. The officer cannot provide inaccurate or misleading information about implied consent that could impact your ability to make an informed decision or coerce you into consenting.

What if You Refuse a Drug or Breath Test?

You do have the right to refuse to submit to a breath, blood, or urine test after a DUI arrest. However, there are consequences to this choice, and some states even have “no refusal” laws where law enforcement can seek a warrant to allow testing, even if you do not agree. Refusing a test for substances cannot be used as a basis for further criminal charges, but it can carry administrative penalties, such as license suspension. Your refusal may also be allowed as evidence in your criminal trial, and the prosecution often cites a refusal as proof that you knew you were driving under the influence. The exact penalties for refusing a test for intoxicating substances vary from state to state, so it is vital to understand what consequences you may face if you decline testing. Remember that refusal penalties are enforced in addition to any criminal penalties resulting from a DUI conviction.

Consequences in South Carolina

If you do not submit to state-required chemical testing after a lawful DUI arrest in South Carolina, you will face a suspension of your license. The length of this suspension depends on how many alcohol-related suspensions or convictions you had in the preceding ten years. For a first-time offense, the suspension is at least six months. For a second offense, it is nine months. A person may have the suspension removed if they agree to install an ignition interlock device per the state’s IID program.

However, our attorneys can advise you on the process to contest the suspension of your driving privileges and explain how to get you back on the road.

Consequences in Georgia

Under Georgia law, a refusal to take the required chemical test will result in an immediate hard suspension of your driver’s license for 12 months. Under a hard suspension, you cannot apply for a limited or hardship permit, even if you have medical issues or need to drive for your job. This suspension is only effective within the state of Georgia. If you are an out-of-state driver, Georgia can only revoke your driving privileges within the state and cannot suspend your driver’s license from your home state.

Why Should You Contact a Lawyer Immediately After a DUI Arrest?

A DUI in any state is a serious charge that can have significant economic and social impacts on your life. An additional implied consent violation can lead to even more legal consequences. However, implied consent law and its implementation is a complex topic. An experienced DUI defense attorney can investigate your case and determine whether the arresting officer acted in accordance with the laws.

In DUI cases, time is of the essence. Deadlines for requesting hearings can be as short as 30 days. Don’t risk losing your license for an extended period of time. Contact our law firm today to learn more about your legal rights and options after a DUI arrest.