Fixing the Fatal Flaws in OUI Implied Consent Laws

Tina Cafaro

Western New England University School of Law

December 13, 2011

Journal of Legislation, Vol. 34, p. 99, 2008

This Article explores the use of implied consent laws as a method of deterring and punishing alcohol-impaired driving. Part I introduces the history and purpose of implied consent laws. Part II discusses the inadequacies of current statutory implied consent provisions and their failure to effectively attain their designed purpose. This section also highlights two particularly detrimental aspects of the law as currently implemented: (1) the lack of uniformity in the application of the laws by individual states; and (2) the disparate treatment of persons who refuse to submit to BAC testing, both in terms of consequences of refusal to submit to testing and evidential use at trial.

Ultimately, this Article espouses the notion that evidence of a defendant's BAC is one of the most valuable and persuasive pieces of evidence in an OUI case and is directly linked to the deterrence function of implied consent laws. BAC evidence may exonerate an individual who is wrongfully charged and may help to convict an individual who is impaired. By denying the prosecution the ability to collect and use this evidence, the likelihood of conviction is greatly reduced. Part III provides statutory guidance to ensure that implied consent laws are meaningful and powerful law enforcement tools that effectively achieve their stated purpose: a reduction in the number of intoxicated drivers on the highways. If a motorist refuses to provide a BAC sample, there should be a separate criminal charge rather than just an administrative penalty. Additionally, the prosecution should be permitted to present evidence to the fact-finder about the defendant's refusal to submit to BAC testing.

When death or serious bodily injury results from a car crash, compulsory BAC testing must be administered to the operator. Furthermore, the administrative sanction for refusing to submit to the test should be harsher than the administrative sanction for testing over the legal limit. Finally, when an individual's license is suspended for a refusal, the license should only be reinstated after the entire suspension period is over. These changes to current statutory implied consent provisions are necessary; otherwise, implied consent in an OUI context is meaningless.

Number of Pages in PDF File: 24

Keywords: drunk driving, OUI, operating under the influence, DUI, driving under the influence, alcohol, implied consent, impaired driving, BAC, blood alcohol content, disparate treatment, state uniformity, criminal law, evidence

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Date posted: December 14, 2011 ; Last revised: December 28, 2011

Suggested Citation

Cafaro, Tina, Fixing the Fatal Flaws in OUI Implied Consent Laws (December 13, 2011). Journal of Legislation, Vol. 34, p. 99, 2008. Available at SSRN: http://ssrn.com/abstract=1971792

Contact Information

Tina Cafaro (Contact Author)
Western New England University School of Law ( email )
1215 Wilbraham Road
Springfield, MA 01119
United States

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