Arizona drivers might want to think twice before refusing a breath test

March 26, 2014 (Press-News.org) Arizona drivers might want to think twice before refusing a breath test

Article provided by The Law Office of Cary L. Lackey, PC
Visit us at http://www.carylackeylaw.com/

Many Arizona motorists may be astonished to learn that by simply driving a motor vehicle in the state they have already consented to alcohol testing if arrested for driving under the influence (DUI). This is typically referred to as Arizona's "admin per se" or implied consent law.

In fact, this "implied consent" is rooted in an Arizona statute that dictates police may subject a driver to blood, breathalyzer, and/or urine tests if they have reasonable grounds to believe the driver is operating a vehicle while under the influence of alcohol or under the age of 21 with alcohol in his or her system. Arizona law also expressly permits the police, and the police alone, to choose the type of testing they will administer.

While drivers may attempt to refuse to submit to such alcohol testing, there may be severe penalties for doing so in Arizona. For instance, if a driver refuses alcohol testing in Arizona after being arrested for a DUI, the arresting officer will not only require the driver to surrender his or her license but also inform the driver that the license will be suspended for one year - which typically goes into effect 15 days later. Importantly, this suspension period increases to two years for a second wrongful refusal within seven years.

A driver accused of refusing a test may ask for a hearing on the matter, but there is a limited time in which the driver can make such a request (15 days from the date the implied consent affidavit was served on the driver by the police officer). Moreover, the hearing following a refusal only addresses a limited number of issues, which include:
-Whether the arresting officer had reasonable grounds to believe the driver operating the vehicle was under the influence of alcohol or drugs
-Whether the driver was under arrest
-Whether the driver refused testing
-Whether the driver was informed of the consequences of a refusal

If a driver fails to request a hearing - or if at the hearing the wrongful refusal is upheld - the driver's license will be suspended. But, after completing 90 days of this suspension, a driver may apply for a special ignition interlock license. If approved, the driver must keep an ignition interlock device installed in his or her car for the remaining period of his or her license suspension.

What constitutes a refusal in Arizona?

Under Arizona law, when a driver is arrested for a DUI, any failure on his or her part to expressly agree to or complete testing will be deemed a refusal. And, while police cannot typically "force" a driver to submit to testing, this does not apply if police ultimately obtain a search warrant for the driver's blood (which CAN be taken forcibly). Thus, a driver can wind up with the worst of both worlds: a driver's license suspended for one year, AND a criminal DUI case with their blood-alcohol content used against him/her).

In addition, the police can administer alcohol testing without the express consent of the driver when the driver is unconscious; due to the theory that a driver in an unconscious state is unable to withdraw his or her implied consent provided for under the law.

It is important for drivers to consider all of the possible ramifications for refusing alcohol testing under Arizona law. After all, even if you refuse a test, you may nevertheless be charged with a DUI anyway. Given the intricacies present in Arizona DUI law, it is best to consult with a skilled DUI defense attorney if you are facing drunk driving charges. An experienced attorney can help examine the circumstances of your arrest and assist in developing a sound legal defense.