Implied consent is consent which is not expressly granted by a person, but rather implicitly granted by 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. There are no U.S. states that allow implied consent as an excuse for rape in a court of law.
All U.S. states have driver licensing laws which state that a licensed driver has given their implied consent to a certified breathalyzer or by a blood sample by their choice, or similar manner of determining blood alcohol concentration. Implied consent laws may result in punishment for those who refuse to cooperate with blood alcohol testing after an arrest for suspected impaired driving, including civil consequences such as a driver's license suspension.
In 2016, the Supreme Court of the United States in Birchfield v. North Dakota held that both breath tests and blood tests constitute a search under the Fourth Amendment, concluding that requiring breath tests is constitutional without a search warrant, however, requiring more intrusive blood tests involving piercing the skin is not, as the goal of traffic safety can be obtained by less invasive means. Specifically addressing implied consent laws, the court in the Birchfield opinion stated that while their "prior opinions have referred approvingly to the general concept of implied-consent laws" that "there must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads" and "that motorists could be deemed to have consented to only those conditions that are 'reasonable' in that they have a 'nexus' to the privilege of driving".
In 2016, People v. Arredondo, the California Courts of appeals debated whether authorities could seize an unwarranted blood sample from an unconscious person suspected of driving under the influence without offending the Fourth Amendment's guarantee against unreasonable searches or seizures. The court ruled that the defendant "consented to such a search in advance solely by operation of the statute in California, which declares that anyone who drives a vehicle in this state is "deemed to have given his or her consent" to blood alcohol testing under specified conditions. Though Arredondo was unconscious at the time his blood was drawn, the court found that the "warrantless search was justified on the consent since California's "implied consent" law states "one who drives a motor vehicle in this state is "deemed" to consent to blood alcohol testing". Moreover, the court ruled that the extraction was justified by "exigent circumstances, statutorily implied consent, the officer's belief that the extraction was lawful in light of long-standing practice under prior case law and good faith reliance on the implied consent statute".
In 1966, the Supreme Court of the United States in Schmerber v. California held that a warrantless blood sample is justified under the Fourth Amendment's pressing circumstances because alcohol in one's blood would be diminished by the body's natural metabolic system if officers were to wait for a warrant. The Fifth Amendment only applies to interrogation and testimony and does not prohibit blood tests. The case resulted in a conviction because it was decided that blood test results do not constitute testimony, proof of a confession or any other communicative acts.
In the United States, implied consent laws generally do not apply to Preliminary Breath Test (PBT) testing (small handheld devices, as opposed to evidential breath test devices). For a handheld field breath tester to be used as evidential breath testing, the device must be properly certified and calibrated, evidential procedures must be followed, and it may be necessary to administer an "implied consent" warning to the suspect prior to testing.
In most US jurisdictions, participation in a PBT test is voluntary; however for some violations, such as refusals by commercial drivers or by drivers under 21 years of age, some US jurisdictions may impose implied consent consequences for a PBT refusal. For example, the state of Michigan has a roadside PBT law that requires motorist a preliminary breath test; however, for non-commercial drivers Michigan's penalties are limited to a "civil infraction" penalty, with no violation "points".
Typically, a party 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.
In Canada, implied consent has not been a defence for sexual assault since the 1999 Supreme Court of Canada case of R v Ewanchuk, where the court unanimously ruled that consent has to be explicit, instead of merely "implied".
In the United States, rape has traditionally been defined as the victim's nonconsent to sexual intercourse. However, "the law of rape is founded on a paradigm of violent stranger rape which fails to clearly proscribe less violent rapes."  This ambiguity requires the courts to determine whether the victim consented or not. During this process it is possible that, "courts examine objective evidence of the woman's state of mind, such as her behavior during the alleged rape and her character in general."  This would allow the defense a chance to convince the court that consent was in some way implied by the victim. Many actions can be perceived by the court as implied consent: having a previous relationship with the alleged rapist (e.g. befriending, dating, cohabitating, or marrying), consenting to sexual contact on previous occasions, flirting, wearing "provocative" clothing, etc. These actions are not explicitly defined by the law as indicators of consent; however, the court may come to the conclusion that these actions in some way implied consent, as has often been the result in non-stranger rape cases. Implied consent may also be used as a defense in the case of violent stranger rape.
Common law rape has generally been defined as "the act of a man having unlawful carnal knowledge of a female over the age of ten years by force without the consent and against the will of the victim" While force is a key element of rape, the evidence must conclude that either the victim resisted and their resistance was overcome by force, or that they were prevented from resisting because their safety was threatened. However, since resistance is relevant to crimes of sexual assault, the presence or absence of it depends on the facts and circumstances in each case. While consent may involve submission, submission itself does not necessarily imply consent. In other words, "submission to a compelling force, or as a result of being put in fear, is not consent"  since it has been proven that non-resistance or compliance with an attacker's request is a way to protect oneself from additional and often more severe abuse. "Genuine and continuing fear of such harm", or abuse, "on the part of the persecuting witness" is a significant factor in determining whether the attacker committed a "felonious and forcible act against the will and consent of the prosecuting witness". As a tactic for survival, rape counselors advise women to "do whatever is necessary to protect themselves from physical injury and to save their lives" in a threatening situation.
In many common law 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 Western countries.
In the United States, however, some state legislature offer leniency to perpetrators of spousal rape. These legislations typically require the use of physical violence from the perpetrator in order to be considered a felony. Reasons given relate to evidence and the potential for malicious prosecution.
In the 1984 Virginia Supreme Court Case Weishaupt v. Commonwealth. it states that "[A] wife can unilaterally revoke her implied consent to marital sex where ... *292 she has made manifest her intent to terminate the marital relationship by living separate and apart from her husband; refraining from voluntary sexual intercourse with her husband; and, in light of all the circumstances, conducting herself in a manner that establishes a de facto end to the marriage." This allows the spouse to commit what would be considered rape outside of marriage, inside the confines of the marriage as long as the de facto end of the marriage has not occurred. Again in the Virginia Supreme Court in 1984 Kizer v. Commonwealth upheld the ruling.
Idaho State legislature states, "No person shall be convicted of rape for any act or acts with that person's spouse…" unless the perpetrator used physical violence. Similar to Idaho, South Carolina State legislature only considers spousal sexual battery as a felony if "accomplished through use of aggravated force."
Oklahoma State Law, being one of the more extreme examples, excludes spousal rape from their definition of rape by claiming, "Rape is an act of sexual intercourse involving vaginal or anal penetration accomplished with a male or female who is not the spouse of the perpetrator…"
Commonwealth v. Chretien in Massachusetts in 1981 stated that, "There was no unfairness in subjecting a defendant to criminal prosecution for rape of his wife under G. L. c. 265, Section 22, as amended by St. 1974, c. 474, Section 1, which this court construes to eliminate the common law spousal exclusion, where the rape occurred after the wife had obtained a judgment of divorce nisi and was therefore unlawful even under the common law." They concluded that the husband could be convicted of rape only because the wife had already ordered divorce papers.
Some states however do not offer leniency to perpetrators of spousal rape.
In State v. Smith 1981 in New Jersey one of the concurring opinions states, "The statute has never contained any exception or exemption. I would construe it to mean exactly what it says and would hold that a husband who had carnal knowledge of his wife forcibly and against her will was guilty of rape." This case affirmed that rape can still take place while a marriage is still ongoing.
Similarly in People vs. Liberta 1984 in New York, the opinion states about the Marriage Exception, "This statement is an apt characterization of the marital exemption; it lacks a rational basis, and therefore violates the equal protection clauses of both the Federal and State Constitutions"
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 paramedics may assume implied consent to touch the person to provide first aid. Many states have Good Samaritan laws that protect persons giving aid from legal liability, but the type of persons (laypeople versus healthcare professionals) and the amount of protection varies.
Studies have indicated that implied consent is questionable due to the value patients place on being informed on even the simplest procedures being done to them. There are varying events where implied consent can be seen in reproductive healthcare. An example of implied consent being utilized is when complication arise during routine childbirth and actions need to be taken in order to help the mother and fetus. If complications arise during a natural delivery, an emergency cesarean delivery may be performed, even if the mother had previously rejected the option. However this can only occur if the life of the mother or fetus is in danger.
Implied consent is narrow in that "intervention must be necessary, not merely convenient". Implied consent in law indicates that "medical necessity requires a genuine perception of emergency, and a reasonable response". Some doctors have tried to claim implied consent in the sterilization of women belonging to ethnic minority groups in Europe. This then led to the formation of laws concerning human rights by international treaties and national legislatures that state consent must be given freely by the person in regards to their sterilization.
Some countries have legislation allowing for implied consent for organ donation, asking people to opt out of organ donation instead of opt in, but allow family refusals.
Birchfield v. North Dakota, 579 U.S. ___ (2016), was a case in which the Supreme Court of the United States held that the search incident to arrest doctrine permits law enforcement to conduct warrantless breath tests but not blood tests on suspected drunk drivers.Breathalyzer
A breathalyzer or breathalyser (a portmanteau of breath and analyzer/analyser) is a device for estimating blood alcohol content (BAC) from a breath sample. Breathalyzer is the brand name (a genericized trademark) for the instrument that tests the alcohol level developed by inventor Robert Frank Borkenstein. It was registered as a trademark on May 13, 1954, but many people use the term to refer to any generic device for estimating blood alcohol content.Confidentiality
Confidentiality involves a set of rules or a promise usually executed through confidentiality agreements that limits access or places restrictions on certain types of information.Consent
Consent occurs when one person voluntarily agrees to the proposal or desires of another. It is a term of common speech, with specific definitions as used in such fields as the law, medicine, research, and sexual relationships.
Types of consent include implied consent, expressed consent, informed consent and unanimous consent. Consent as understood in specific contexts may differ from its everyday meaning. For example, a person with a mental disorder, a low mental age, or under the legal age of sexual consent may willingly engage in a sexual act that still fails to meet the legal threshold for consent as defined by applicable law. United Nations agencies and initiatives in sex education programs believe that teaching the topic of consent as part of a comprehensive sexuality education is beneficial.DPP v Lennon
DPP v Lennon is the first reported criminal case in the U.K. concerning so-called “denial of service” (DoS) attacks. The appeal court found that DoS attacks constituted an offence of unauthorised modification under s. 3 of the Computer Misuse Act 1990 (CMA) and thus, clarified the law regarding DoS.Driving under the influence
Driving under the influence (DUI) is the crime or offense of driving or operating a motor vehicle while impaired by alcohol or other drugs (including recreational drugs and those prescribed by physicians), to a level that renders the driver incapable of operating a motor vehicle safely.Drunk drivers
People driving under the influence of alcohol are commonly referred to as drunk drivers, or drink-drivers.
"[a]lcohol-related motor vehicle accidents claim 17,000 American lives each year- the equivalent of one death every 30 minutes. An increase of blood alcohol concentration (BAC) of 0.02 percent doubles the relative risk of a motor vehicle crash among 16- to 20-year-old males, and that risk increases to nearly 52 times when the BAC is between 0.08 percent and 0.10 percent, the legal limits in many states."
About 25% of all road fatalities in Europe are alcohol-related whereas about only 1,6% of all kilometres driven in Europe are driven by drivers with 0,5 g/l alcohol or more in their blood.
Laws are also in place to protect citizens from the consequences incurred by drunk drivers.
In fact "To help control the number of drunk driving episodes, states have lowered the blood alcohol content limit to .08%." In terms of American law driving under the influence or while intoxicated "is never a defense to a crime or motor-vehicle infraction involving reckless behavior."When charged with this as a crime, it may either be referred to as a DUI (Driving Under the Influence) or a DWI (Driving While Intoxicated), where a DUI is generally considered to be a lesser crime.
Studies have been performed to identify commonalities between severe drunk drivers.Drunk driving in the United States
Drunk driving is the act of operating a motor vehicle with the operator's ability to do so impaired as a result of alcohol consumption, or with a blood alcohol level in excess of the legal limit. For drivers 21 years or older, driving with a blood alcohol concentration (BAC) of 0.08% or higher is illegal. For drivers under 21 years old, the legal limit is lower, with state limits ranging from 0.00 to 0.02. Lower BAC limits apply when operating boats, airplanes, or commercial vehicles. Among other names, the criminal offense of drunk driving may be called driving under the influence (DUI), driving while intoxicated or impaired (DWI), operating [a] vehicle under the influence of alcohol (OVI), or operating while impaired (OWI).Field sobriety testing
Field Sobriety Tests (FSTs), also referred to as Standardized Field Sobriety Tests (SFSTs), are a battery of tests used by police officers to determine if a person suspected of impaired driving is intoxicated with alcohol or drugs. FSTs (and SFSTs) are primarily used in the US, to meet "probable cause for arrest" requirements (or the equivalent), necessary to sustain an alcohol-impaired driving (DWI or DUI) conviction based on a chemical blood alcohol test.Fighting Internet and Wireless Spam Act
The Fighting Internet and Wireless Spam Act (the Act), is Canada's anti-spam legislation that received Royal Assent on December 15, 2010. The Act replaced Bill C-27, the Electronic Commerce Protection Act (ECPA), which was passed by the House of Commons, but died due to the prorogation of the second session of the 40th Canadian Parliament on December 30, 2009. The Act went into effect July 1, 2014.
The Act applies to "all communications sent by Canadian companies, to Canadian companies or messages simply routed through Canadian servers". This includes personalised communications such as email or SMS messages delivering any form of communication, such as text, images, voice or sounds, or technologies not yet available. However, the Act exempts communications sent via telephone or facsimile, as these are already regulated under the Telecommunications Act.The Act requires that marketers may only send email to individuals who opt into receiving them. Such consent may be implicit, such as by engaging in a transaction with a company, or by virtue of having one's telephone number or email address listed in a public directory. It is mandatory for senders to enable recipients to opt out of receiving messages. Records collected by marketers via implied consent have a time limit. This act makes it necessary for marketers to send a one-time double opt-in subscription request to all its subscribers whose consent has not been explicitly taken till the date this act came into force. As companies' email lists expand over the years and their consent type and source does not remain clear, most of the companies sent the double opt-in email to all their subscribers once the Act came into force.An email address has always been considered personal information per the Personal Information Protection and Electronic Documents Act, (PIPEDA) which can require implied or explicit consent before an email address is collected or used. The Act added additional protections in PIPEDA to prevent companies from relying on PIPEDA exceptions relating to fraud prevention or debt collection to generate email lists by data mining or automatic crawling without consent.The Act is enforced by three organizations: the Competition Bureau, the Canadian Radio-television and Telecommunications Commission (CRTC) and the Office of the Privacy Commissioner. It includes a "private right of action that will allow Canadian consumers and businesses to take civil action against those who violate the legislation". The CRTC may levy fines of up to $1 million for an individual or $10 million for a business that contravenes the Act . Each violation may result in a fine.The Act has been criticized by some, such as by David Poellhuber, who says "It’s not going to change the spam you and I receive in our inboxes" because about 70 per cent of spam originates from botnets operating in other countries, notably Brazil, Russia, and the United States; and by academics who argue that it is unconstitutional. However, one analysis found a 29% reduction in spam received by Canadians and a corresponding 37% reduction in spam sent by Canadians once the Act took effect.Georgia State Patrol
The Georgia State Patrol (GSP) was established in March 1937 in the U.S. state of Georgia and is a division of the Georgia Department of Public Safety. GSP troopers investigate traffic crashes and enforce traffic and criminal laws on the state's roads.Good Samaritan law
Good Samaritan laws offer legal protection to people who give reasonable assistance to those who are, or whom they believe to be, injured, ill, in peril, or otherwise incapacitated. The protection is intended to reduce bystanders' hesitation to assist, for fear of being sued or prosecuted for unintentional injury or wrongful death. An example of such a law in common-law areas of Canada: a good Samaritan doctrine is a legal principle that prevents a rescuer who has voluntarily helped a victim in distress from being successfully sued for wrongdoing. Its purpose is to keep people from being reluctant to help a stranger in need for fear of legal repercussions should they make some mistake in treatment. By contrast, a duty to rescue law requires people to offer assistance and holds those who fail to do so liable.
Good Samaritan laws may vary from jurisdiction to jurisdiction, as do their interactions with various other legal principles, such as consent, parental rights and the right to refuse treatment. Most such laws do not apply to medical professionals' or career emergency responders' on-the-job conduct, but some extend protection to professional rescuers when they are acting in a volunteer capacity.)
The principles contained in good Samaritan laws more typically operate in countries in which the foundation of the legal system is English Common Law, such as Australia. In many countries that use civil law as the foundation for their legal systems, the same legal effect is more typically achieved using a principle of duty to rescue.
Good Samaritan laws take their name from a parable found in the Bible, attributed to Jesus, commonly referred to as the Parable of the Good Samaritan which is contained in Luke 10:29-37. It recounts the aid given by a traveller from the area known as Samaria to another traveller of a conflicting religious and ethnic background who had been beaten and robbed by bandits.Informed consent
Informed consent is a process for getting permission before conducting a healthcare intervention on a person, or for disclosing personal information. A health care provider may ask a patient to consent to receive therapy before providing it, or a clinical researcher may ask a research participant before enrolling that person into a clinical trial. Informed consent is collected according to guidelines from the fields of medical ethics and research ethics.
An informed consent can be said to have been given based upon a clear appreciation and understanding of the facts, implications, and consequences of an action. Adequate informed consent is rooted in respecting a person's dignity. To give informed consent, the individual concerned must have adequate reasoning faculties and be in possession of all relevant facts. Impairments to reasoning and judgment that may prevent informed consent include basic intellectual or emotional immaturity, high levels of stress such as posttraumatic stress disorder (PTSD) or a severe intellectual disability, severe mental disorder, intoxication, severe sleep deprivation, Alzheimer's disease, or being in a coma.
Obtaining informed consent is not always required. If an individual is considered unable to give informed consent, another person is generally authorized to give consent on his behalf, e.g., parents or legal guardians of a child (though in this circumstance the child may be required to provide informed assent) and conservators for the mentally disordered, or consent can be assumed through the doctrine of implied consent, e.g., when an unconscious person will die without immediate medical treatment.
In cases where an individual is provided insufficient information to form a reasoned decision, serious ethical issues arise. Such cases in a clinical trial in medical research are anticipated and prevented by an ethics committee or Institutional Review Board.
Informed Consent Form Templates can be found on the World Health Organization Website for practical use.Medical emergency
A medical emergency is an acute injury or illness that poses an immediate risk to a person's life or long-term health, sometimes referred to as a situation risking "life or limb". These emergencies may require assistance from another person, who should ideally be suitably qualified to do so, although some of these emergencies such as cardiovascular (heart), respiratory, and gastrointestinal cannot be dealt with by the victim themselves. Dependent on the severity of the emergency, and the quality of any treatment given, it may require the involvement of multiple levels of care, from first aiders through emergency medical technicians, paramedics, emergency physicians and anesthesiologists.
Any response to an emergency medical situation will depend strongly on the situation, the patient involved, and availability of resources to help them. It will also vary depending on whether the emergency occurs whilst in hospital under medical care, or outside medical care (for instance, in the street or alone at home).Posthumous sperm retrieval
Posthumous sperm retrieval (PSR) is a procedure in which spermatozoa are extracted from a human male after he has been pronounced legally brain dead. There has been significant debate over the ethicality and legality of the procedure, and on the legal rights of the child and surviving parent if the gametes are used for impregnation.Cases of post-mortem conception have occurred ever since human artificial insemination techniques were first developed, with sperm donated to a sperm bank being used following the death of the donor. While religious arguments have been brought against the process even under these circumstances, far more censure has arisen from a number of quarters with regards to invasive retrieval from fresh cadavers or patients either on life support or in a persistent vegetative state, particularly when the procedure is carried out without explicit consent from the donor.R v Ewanchuk
R v Ewanchuk,  1 SCR 330 is a leading Supreme Court of Canada case concerning the defence of consent to a charge of sexual assault. The Court held that there was no defence of implied consent. The case is also notable for the controversy that arose between Justice John McClung and Justice Claire L'Heureux-Dubé.Registered land in English law
Registered land in English law accounts for around 88 per cent of the total land mass. Since 1925, English land law has required that proprietary interests in land be registered, except in cases where it is necessary to protect social or family interests that cannot reasonably be expected to be registered. English law also runs a parallel system for around 12 per cent of land that remains unregistered.Rosselle Pekelis
Rosselle Pekelis (born 1938) is a former Washington Supreme Court judge.Traffic stop
A traffic stop, commonly called being pulled over, is a temporary detention of a driver of a vehicle by police to investigate a possible crime or minor violation of law.
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