Can you give DUI “implied consent” when unconscious?

Posted by on March 9, 2016 in #DUIdata | 0 comments

Can you give DUI “implied consent” when unconscious?

Quick update on this blog/case. So it’s on appeal right now…so we’ll see if it remains as law or gets overturned…  As of 10/28/16, we still haven’t seen the decision. Anywho, here’s the original info from this case:

Can you give DUI “implied consent” when unconscious?

“Implied consent” means that you have already agreed to submit to a breath or blood test if investigated for DUI just simply because you are a licensed driver in California.  It’s a requirement when you sign up for your license.

But let’s shake it up a little.  How does implied consent apply against the 4th Amendment against unlawful searches and seizures?  Oh yea, that little piece of paper.  If you give ACTUAL consent, that’s one thing (“Yes Officer, I elect to do a blood test.”)…but what if you do NOT give actual consent?  Does this “implied consent” trump your 4th Amendment protection such that Police can just take your blood without getting a warrant?

Or, what if you’re unconscious and cannot give actual consent to a blood draw?  Ooo, now we’re getting HOT.  Enter the Dragon, this February 26, 2016 California Court of Appeals decision People v. Arredondo*.

The facts in Arredondo:

A crash left a few people injured, and Defendant unconscious.  About 90 minutes later, Police executed the DMV Admin Per Se form on Defendant’s unconscious body, and a phlebotimist drew Defendant’s blood at the hospital.  The Officer did not obtain a warrant (he had actually never tried to obtain a warrant ever before in his career).

To start, what is required legally:

At face value, warrantless searches are unlawful.  But they can be lawful with consent that was “freely and voluntarily given.” “Most commonly this question turns on whether the person searched in fact manifested consent to the search and whether, in view of ‘the totality of all the circumstances,’ that consent ‘was in fact `voluntary’ or was the product of duress or coercion, express or implied.'”

Here, Defendant was knocked out, so could not give actual consent.  But the Trial Court held he had consented before by “implied consent” and so they didn’t care that the Officer didn’t get a search warrant.  Defendant appealed.

So does implied consent trump actual consent?

Nope.  I’ll make this short, the Court says DMV at the DMV level can take action against your license for refusing a chemical test (once properly admonished).  But DMV has this power because all they are doing is taking away your privilege to drive.  But taking away your driving is much different than the Court’s power to toss you in jail.

Is implied consent per DMV the same as other legal implied consents?

So this is interesting.  Because you CAN give consent by giving implied consent.  But there is a difference between the DMV “implied consent” where you sign into implied consent just to get your license, and giving implied consent implied by your actual actions/conduct.

“Certainly consent sufficient to sustain a search may be “implied” as well as explicit, but it is nonetheless actual consent, ‘implied’ only in the sense that it is manifested by conduct rather than words.”

The Court says these two types of consent are way different: “Nothing here [in this Arredondo case] resembles this ‘implied consent.’ The mere operation of a motor vehicle is not a manifestation of actual consent to a later search of the driver’s person.”


“[I]n contrast to a licensee who signs the statement described above, these drivers cannot be argued to have consented in fact to a search of their persons. They have not been asked to agree, or told that they have a choice, or apprised of the consequences that will flow from their conduct.”

Again, double BOOM.

Other really powerful punches from the Court:

  • Obviously consent of this kind cannot be characterized as free or knowingly and intelligently made
  • It cannot be voluntarily given.
  • For the same reason, it can never be tested for “duress or coercion.”
  • In short, it is not real consent.

That last one is the mic drop.  It’s NOT REAL CONSENT.

“The immediate purpose of this statutory scheme is to provide an incentive for voluntary submission to the chemical test and to eliminate the potential for violence inherent in forcible testing.  The ultimate purpose is to deter drinkers from driving, thereby reducing the carnage on our highways.  The statute grew out of a legislative perception that while forcible blood draws were lawful, `such an episode remains an unpleasant, undignified and undesirable one.'”

So, while a warrantless blood draw “may be admissible in administrative license revocation proceedings whether or not the dictates of the Fourth Amendment have been observed[,]” “it does not purport to make the results of such a test admissible in a criminal prosecution without a warrant or proof of circumstances establishing an exception to the warrant requirement.”

In short, just get a freakin’ warrant.

The end game here:

“We fear the Fourth Amendment could be left in tatters by a rule empowering the state to predicate a search on conduct that does not in fact constitute a manifestation of consent but is merely “deemed” to do so by legislative fiat.”

The main ruling: “in the absence of facts sufficient to establish actual consent, or some other exception to the rule, the seizure must be supported by a duly issued warrant.

Nevertheless, the Court held the Officer acted in good faith [shrugs shoulders, “how was HE supposed to know…”], and thus let the warrantless blood draw come in.

This is all new issues for the Cali Courts: “no California court has held before today that the consent imputed by the statute is not a sufficient basis to dispense with a warrant.”  So while this argument ultimately failed for this case, now Police have been put on notice that this law exists, so it can be argued in the future.

*Right now, it’s citable as 2016 WL 758597.

About the author, San Diego DUI lawyer Eric Ganci:


I am an owner and DUI lawyer in San Diego with my own firm Ganci, Esq., A Professional Corporation.  I am trained in blood testing for drugs and alcohol, trained on breath testing, and trained to train police on field sobriety tests.  I have authored Thomson West Publications regarding DUI science and law, and am a founding member of the DUI Lawyers Association, a national group.  

I am recognized, after completing the required coursework and passing the certification exam, as a Lawyer-Scientist by the American Chemical Society, Chemistry and the Law division.  I have been fortunate to be awarded many other awards, and  you can see my full bio here.

I received my JD from Thomas Jefferson School of Law, my BA in Music Education from Northern Illinois University, and graduated from the Trial Lawyers College in 2013.

I have offices in San Diego and Vista (North County San Diego), and I represent persons arrested for DUI in all counties in San Diego.

On the side, I am a drummer with my San Diego live band karaoke group, Rock Out Karaoke, and have earned several musical accomplishments, such as opening for Anthrax and having Ving Rhames say “I like your band’s cd.”

Also, per California Rules of Professional Conduct, I must say this blog may be seen as a solicitation.  Although I try to simply make them informative and entertaining, some persons may take it as a legal solicitation.  It’s not, and it does not in any way form any kind of attorney-client relationship with whoever reads it.

Eric Ganci, Esq., DUI trial lawyer

Ganci Esq., APC

Cell: 760-216-4941


Fax: 888-241-5887


Downtown office:

110 West C St, Ste 712

San Diego CA 92101


North County office:

950 Vista Village Dr

Vista, CA 92084

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