Refusing DUI Breath and Blood Tests in Arizona

by Aaron M. Black • August 28, 2020

Flashing Lights of an Arizona Law Enforcement Officers CarRed lights flashing in the mirror and an Arizona traffic officer suspects you’ve been drinking. The officer wants you to take a breathalyzer test and in some situations a blood test. Confusion erupts. What should you do?

On the side of the road, the officer is going to ask you to complete field sobriety tests. These typically consist of the Walk and Turn (walking a line), One Leg Stand (balancing on a leg) and HGN (eye test). You should ask to speak to a lawyer, invoke your right to remain silent, and refuse the tests.

Preliminary Breath Test for DUIThe officer will then ask you to blow into a Preliminary Breath Test (PBT) on the side of the road. Again, you should ask to speak to a lawyer, invoke your right to remain silent, and refuse the test.

You will be arrested, but you are not helping he officer prove his case.

In the police car, at the DUI van, or back at the station, the officer will read you The Admin Per Se/Implied Consent Affidavit. Basically, the form is telling you if you consent to a breath and/or blood test your license will be suspended for 90 days. If you do not consent, your license will be suspended for one year. You should ask to speak to a lawyer. Typically, at this point you want to consent to the test. If you do not, the officer will simply get a warrant and get your blood anyway.

Ramifications of refusing DUI tests

Refusing the tests has ramifications under Arizona’s “Implied Consent” law, Arizona Revised Statute §28-1321(A). Driving isn’t a right. It’s a privilege which fulfills the implied piece of the law, while the consent aspect is formed when the license is issued.
 
The officer can’t command you to take these tests unless law enforcement obtains a warrant signed by a judge before either test is administered. With today’s technology, getting a warrant usually doesn’t take very long but long enough, perhaps, for your blood-alcohol content to reduce as your system processes the alcohol.
 
Officers who demand that you take the tests violate the U.S. Constitution’s Fourth Amendment as an illegal search and seizure, and that’s a strong defense to a DUI charge and grounds for a lawsuit for violating your civil rights.

Refusing a DUI test and your driver’s license

If you refuse to take a breath or blood test, your driver’s license will be suspended for as long as a year. If this is a second refusal in 85 months your license will be suspended for two years. When you refuse testing, the officer will confiscate your driver’s license and give you a temporary permit that’s valid for only 15 days. For out of state visitors, the officer can’t take a license issued by another state.

After 90 days of the year suspension, you’re entitled to have a restricted license. This type of license allows you to drive to work or school you will be required to have an ignition interlock device installed on your vehicle. The device prevents the engine from starting if any trace of alcohol is detected by blowing into a breathalyzer before turning the key. You will also be required to complete an alcohol screening and obtain SR22 insurnce.

Driving without a valid license is a class one misdemeanor punishable by 180 days in county jail followed by three years of probation, which places restrictions on your behavior and meeting regularly with a probation officer.

Fines reaching into four figures will be imposed and your vehicle is impounded for 30 days at your expense.

Commercial drivers, who can be cited for a BAC of only 0.04 percent compared to 0.08 BAC for other drivers, will lose their license for at least 90 days.

Drivers younger than 21, Arizona’s legal drinking age, can be cited for any BAC level even if the person wasn’t impaired.

Restoring your Arizona driver’s license

Within 15 days after surrendering your driver’s license to the officer you may file an online or written request with the Arizona Department of Transportation Motor Vehicle Services for an impartial hearing before an administrative judge to contest the license suspension. If you don’t take this necessary step your license suspension order becomes final.

The administrative hearing judge considers the testimony and evidence presented.

The license suspension can be dismissed if you can show that the officer didn’t have the reasonable grounds to detain you in the first place, or didn’t tell you what would happen if you declined testing.

The decision of the administrative judge is binding. However, if you don’t agree with the judge’s ruling, you can petition for a rehearing. If you’re still not satisfied, the next step is to appeal to Superior Court and after that the Arizona Court of Appeals.

Administrative law and its procedures are very different than criminal law. You will need the services of an experienced DUI attorney who has handled cases in the administrative law arena.

Confidential free legal consultation

Know how you stand by taking advantage of my free and confidential consultation. I will explain the law, review any documents related to your case, and assess the best possible defense available to you. You don’t have to hire me to get my advice.

Our consultation can be in person, on the phone or online at FaceTime. I aggressively defend people facing legal trouble by challenging the state’s evidence and conducting my own
investigation. I will do everything possible to protect your driver’s license and you’ll always to be talking to me not an assistant.

Contact Phoenix DUI defense attorney Aaron Black to arrange for your free consultation. Call 480-729-1683 and I’ll respond promptly unless I’m in court.

Aaron Black defends DUI cases in justice, municipal, state and federal courts in Maricopa and adjacent counties.
 
In light of the Coronavirus pandemic, I wanted to inform clients and potential clients I am still available for consultations. I am always available by phone, text and/or email. We can also use Facetime for social distancing. The criminal justice system is not stopping due to COVID-19.


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