7.764 — IMPLIED CONSENT

First time violations of "Statute 7.764" results in a 1 year license suspension, second time violations will result in a 2 year suspension of license (within 10 years), third or subsequent refusal/violations will result in a 3 year license suspension.

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(a) Definitions

Implied consent refers to the legal doctrine that any individual who operates a motor vehicle on public roads is deemed to have given consent to chemical testing of their breath, blood, urine, or saliva if lawfully detained by a peace officer under suspicion of driving while under the influence of alcohol, drugs, or other controlled substances.

This statute applies regardless of whether the driver explicitly agrees or refuses, as the act of driving itself constitutes a pre-accepted agreement to testing under certain conditions. Refusal to submit to such testing may trigger automatic administrative penalties, even in the absence of a DUI conviction.

(b) Elements

To establish a violation of this statute, the prosecution must prove beyond a reasonable doubt that:

• The defendant was operating or in physical control of a motor vehicle on a public roadway

• A law enforcement officer had reasonable grounds or probable cause to suspect the defendant of driving under the influence

• The officer requested a chemical test in accordance with legal procedure

• The defendant refused, obstructed, or failed to comply with the testing process without lawful justification

Refusal can include verbal denial, physical resistance, or failure to complete the test after beginning it. A violation occurs even if the person is later found not to be intoxicated.

(c) Defenses

Defenses to a charge under implied consent laws may include:

• Improper procedure: The officer failed to follow correct legal protocols when requesting the test, such as not informing the driver of the consequences of refusal

• Medical or physical incapacity: The driver was physically unable to complete the test due to a medical condition, injury, or other legitimate impairment

• Unlawful stop or detention: The initial traffic stop lacked probable cause, making the request for testing invalid

• Test was not offered: No actual opportunity to submit to testing was given, or there was a miscommunication leading to a mistaken belief that the test had been refused

These defenses must be supported by evidence, such as dash cam footage, medical records, or officer bodycam recordings.

(d) Aggravating Factors

Aggravating factors that may increase the severity of penalties or affect sentencing include:

• The defendant had prior DUI convictions or previous refusals to submit to testing

• The refusal occurred after a crash involving injury, death, or significant property damage

• The defendant attempted to flee the scene or evade law enforcement

• The defendant was transporting a minor at the time of refusal

• The refusal caused delay or obstruction to an active DUI investigation