What is A.R.S. § 28-1321 in Phoenix, Arizona?

by Aaron Black • June 14, 2018
Portable Breath TestIt happens. One more drink, a burned out brake light, flashing red lights behind and the officer suspects you are intoxicated. Standard procedure is asking you to submit to a test to determine your blood alcohol concentration (BAC) or testing for drugs, even opiated prescription drugs.

The Arizona Revised Statutes has a law applicable to this situation called “implied consent,” A.R.S. § 28-1321, which states that refusing to submit to tests measuring the level of intoxication by breath, blood, or urine samples results in a suspension of your driver’s license.

As an experienced Phoenix DUI defense attorney well-practiced in this area of law, my advice is to politely refuse to submit to testing. No need to confirm the officer’s suspicion and give the officer the necessary probable cause to arrest you.

It’s crucial to tell the officer that you want to have a confidential call to an attorney, that’s your constitutional right under the Sixth Amendment. I also advise to politely decline to answer any of the officer’s questions, such as have you been drinking tonight or may I look at your eyes with a pin light, or ask you to stand on one leg or walk a straight line. That’s your right under the Fourth Amendment and anything you say becomes state’s evidence to bolster their case.

A.R.S. § 28-1321 fundamentals

Implied consent is basically a contract between you and the state of Arizona. Because driving is a privilege not a right (the imply part) when you are issued an Arizona driver’s license or permit, it’s suggested that you submit (the consent part) to a sobriety test if an officer asks you, whether you were driving or in “physical control” of the vehicle, which could simply be having the ignition key in your pocket.

The officer can’t demand that you submit to testing. That would be an unconstitutional search and seizure under the Fourth Amendment. To take a blood, breath or urine sample without your consent requires a warrant, which a judge can expediently grant.

If you start the test but don’t finish it, that is considered a refusal to submit to testing. But testing can be performed without consent if the individual is unconscious, for some reason incapable of refusing, or is deceased.

Consequences of refusing DUI testing in Phoenix, AZ

Refusing to submit to testing means that your driver’s license is surrendered to the officer on the spot and is suspended or denied renewal for 12 months. In its place is a temporary permit good for only 15 days issued to you right then. An officer can’t seize an out-of-state license.

After the first 90 days of the suspension you may be issued a restricted license, such as driving to work or school, and be eligible to use a special ignition interlock device that prevents the vehicle from starting if alcohol is detected when breathing into a testing device.

If you have refused testing within the previous seven years from the time of the current stop, your license can be suspended for two years.

Driving while your license is suspended is a class one misdemeanor crime with a maximum punishment of 180 days in jail, three years’ probation, fines that can reach four figures, and your vehicle can be impounded for 30 days.

Completing an alcohol or drug screening is necessary before a license can be restored.

While adult drivers must have an illegal BAC of 0.08 or more, a person younger than 21 years can be cited for any amount of alcohol or drugs even if there is no impairment.

Commercial vehicle drivers will have their license suspended or renewal denied for a minimum of 90 straight days even if the BAC was at the lower 0.04 level.

Before a license can be restored, the driver must submit proof of financial responsibility by submitting form SR22 to verify that Arizona’s minimum insurance liability is in force for injury, death and property damage and maintain the SR22 policy for three years. Insurance companies upon learning of your DUI conviction can cancel your policy or may increase your insurance rates by 30 percent and up to 200 percent, according to Insur.com.

The arresting officer must complete a detailed report filling out a standard list of topics, including that the driver was told the testing was voluntary but would mean license suspension if refused, the manner in how the test was refused, and that you may ask for an administrative hearing.

The administrative hearing opportunity

Although the arresting officer confiscates your driver’s license, you are under law still entitled to due process, which means fair treatment under the law. This is an opportunity to save your license.

You have 15 days after your license was surrendered to the officer to submit a written or online request to the Arizona Department of Transportation Motor Vehicle Services for a fair and impartial hearing before an administrative law judge. Failing to request a hearing within those 15 days means the order suspending your license becomes final, usually within 30 days.

The hearing weighs the evidence and testimony and the decision is binding. If you don’t agree with the decision, you can petition for a rehearing and after that appeal the ruling to the Superior Court. Still not satisfied, the case can go to the Arizona Court of Appeals.

Administrative and civil law and procedures are different from criminal law. It’s important to be represented by an attorney who is experienced presenting cases in this forum.

Defending your license in Phoenix, AZ

The license suspension is dismissed at the administrative hearing if it can be shown that the officer did not have probable cause to stop you or failed to tell you what happens if you refused testing. If blood was taken without your consent, the test results are not admissible into the evidence against you and license suspension is dismissed.

More free legal advice for the asking

In my DUI practice I defend my clients with aggressive challenges to the state’s evidence and a thorough investigation of the circumstances and events involved in Phoenix, Arizona and surrounding ares. I encourage you to make an appointment for my free consultation to assess the state’s case against you. There is no obligation to hire my services at the end of the consultation. But if you do, you can be assured that I will fight my hardest at the administrative hearing to keep your license.

Contact Phoenix DUI Lawyer, Aaron Black or call 480-729-1683 today to learn more about A.R.S. § 28-1321, Implied Consent.