Implied consent
Encyclopedia
Implied consent is a controversial form of consent
which is not expressly granted by a person, but rather inferred from a person's actions and the facts and circumstances of a particular situation (or in some cases, by a person's silence or inaction). The term is most commonly encountered in the context of United States
drunk driving laws
.
s have driver licensing
laws which state that a licensed driver has given his implied consent to a field sobriety test and/or a Breathalyzer
or similar manner of determining blood alcohol concentration. These laws have generally been upheld by courts as a valid exercise of the states' police power
, against challenges under the Fourth Amendment
(as a reasonable search and seizure
) and Fifth Amendment
(as not violative of the right against self-incrimination
). This is largely because in the United States, driving is considered a privilege rather than a right, and the state has a legitimate interest in keeping dangerously intoxicated drivers off the road, to prevent injury, property damage, and loss of life. In most states, however, the police must have reasonable grounds for administering a sobriety test.
has the right to object
in court to a line of questioning or at the introduction of a particular piece of evidence
. If the party fails to object in a timely fashion, he is deemed to have waived
his right to object and cannot raise the objection on appeal
. This is a form of implied consent.
jurisdictions, a couple who married were deemed to have given "implied consent" to have sex with each other, a doctrine which barred prosecution of a spouse for rape. This doctrine is now considered obsolete in most countries.
s may assume implied consent to touch the person to provide first aid
. Many states have Good Samaritan law
s that protect persons giving aid from legal liability, but the type of persons (laypeople versus healthcare professionals) and the amount of protection varies.
Consent
Consent refers to the provision of approval or agreement, particularly and especially after thoughtful consideration.- Types of consent :*Implied consent is a controversial form of consent which is not expressly granted by a person, but rather inferred from a person's actions and the facts and...
which is not expressly granted by a person, but rather inferred from a person's actions and the facts and circumstances of a particular situation (or in some cases, by a person's silence or inaction). The term is most commonly encountered in the context of United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
drunk driving laws
Drunk driving (United States)
Drunk driving is the act of operating and/or driving a motor vehicle while under the influence of alcohol and/or drugs to the degree that mental and motor skills are impaired...
.
Implied consent and driving while intoxicated
All U.S. stateU.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
s have driver licensing
Driver's license
A driver's license/licence , or driving licence is an official document which states that a person may operate a motorized vehicle, such as a motorcycle, car, truck or a bus, on a public roadway. Most U.S...
laws which state that a licensed driver has given his implied consent to a field sobriety test and/or a Breathalyzer
Breathalyzer
A breathalyzer or breathalyser is a device for estimating blood alcohol content from a breath sample...
or similar manner of determining blood alcohol concentration. These laws have generally been upheld by courts as a valid exercise of the states' police power
Police power
In United States constitutional law, police power is the capacity of the states to regulate behavior and enforce order within their territory for the betterment of the general welfare, morals, health, and safety of their inhabitants...
, against challenges under the Fourth Amendment
Fourth Amendment to the United States Constitution
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...
(as a reasonable search and seizure
Search and seizure
Search and seizure is a legal procedure used in many civil law and common law legal systems whereby police or other authorities and their agents, who suspect that a crime has been committed, do a search of a person's property and confiscate any relevant evidence to the crime.Some countries have...
) and Fifth Amendment
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
(as not violative of the right against self-incrimination
Self-incrimination
Self-incrimination is the act of accusing oneself of a crime for which a person can then be prosecuted. Self-incrimination can occur either directly or indirectly: directly, by means of interrogation where information of a self-incriminatory nature is disclosed; indirectly, when information of a...
). This is largely because in the United States, driving is considered a privilege rather than a right, and the state has a legitimate interest in keeping dangerously intoxicated drivers off the road, to prevent injury, property damage, and loss of life. In most states, however, the police must have reasonable grounds for administering a sobriety test.
Court procedure
Typically, a partyParty (law)
A party is a person or group of persons that compose a single entity which can be identified as one for the purposes of the law. Parties include: plaintiff , defendant , petitioner , respondent , cross-complainant A party is a person or group of persons that compose a single entity which can be...
has the right to object
Objection (law)
In the law of the United States of America, an objection is a formal protest raised in court during a trial to disallow a witness's testimony or other evidence which would be in violation of the rules of evidence or other procedural law...
in court to a line of questioning or at the introduction of a particular piece of evidence
Evidence (law)
The law of evidence encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence can be considered by the trier of fact in reaching its decision and, sometimes, the weight that may be given to that evidence...
. If the party fails to object in a timely fashion, he is deemed to have waived
Waiver
A waiver is the voluntary relinquishment or surrender of some known right or privilege.While a waiver is often in writing, sometimes a person's actions can act as a waiver. An example of a written waiver is a disclaimer, which becomes a waiver when accepted...
his right to object and cannot raise the objection on appeal
Appeal
An appeal is a petition for review of a case that has been decided by a court of law. The petition is made to a higher court for the purpose of overturning the lower court's decision....
. This is a form of implied consent.
Spousal rape
In many common lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
jurisdictions, a couple who married were deemed to have given "implied consent" to have sex with each other, a doctrine which barred prosecution of a spouse for rape. This doctrine is now considered obsolete in most countries.
First aid
In the United States, if a person is at risk of death or injury but unconscious or otherwise unable to respond, other people including members of the public and paramedicParamedic
A paramedic is a healthcare professional that works in emergency medical situations. Paramedics provide advanced levels of care for medical emergencies and trauma. The majority of paramedics are based in the field in ambulances, emergency response vehicles, or in specialist mobile units such as...
s may assume implied consent to touch the person to provide first aid
First aid
First aid is the provision of initial care for an illness or injury. It is usually performed by non-expert, but trained personnel to a sick or injured person until definitive medical treatment can be accessed. Certain self-limiting illnesses or minor injuries may not require further medical care...
. Many states have Good Samaritan law
Good Samaritan law
Good Samaritan laws are laws or acts protecting those who choose to serve and tend to others who are injured or ill. They are intended to reduce bystanders' hesitation to assist, for fear of being sued or prosecuted for unintentional injury or wrongful death...
s that protect persons giving aid from legal liability, but the type of persons (laypeople versus healthcare professionals) and the amount of protection varies.