Arizona BAC Consent: Easy as ABC?

September 17, 2010

According to the Maricopa County Attorney, there were nearly 40,000 arrests for driving under the influence in Arizona in 2008. Authorities are serious about keeping impaired drivers off the road and Arizona's DUI laws are some of the toughest in the country.

Like many other states, Arizona has enacted an implied consent to alcohol or drug test law. And while this law takes away drivers' right to refuse a test without penalty, a recent decision by the court of appeals indicates that it does not eliminate their power to refuse.

DUI in AZ

DUI is an offense that is characterized in Arizona as driving under the influence of drugs or alcohol. Blood-alcohol content (BAC) may determine whether a person is driving under the influence but even drivers who are below the legal BAC limit may be impaired. Depending on the circumstances, authorities may also charge impaired drivers with several other crimes.

It is illegal to drive while under the influence of any drug if the driver's normal ability to drive is in any way impaired or if the driver has a BAC of .08 or higher within two hours of driving (provided that the BAC resulted from alcohol consumed prior to or while driving). It is also illegal for the driver to have any controlled substance or its metabolite present in his or her body while driving.

A driver may be charged with extreme DUI if he or she has a BAC of .15 or more within two hours of driving (provided that the BAC resulted from alcohol consumed prior to or while driving).

It is considered aggravated driving under the influence, or aggravated DUI, for a driver:
- With a suspended, canceled, revoked or refused license to commit a DUI or extreme DUI offense
- Within a seven-year period to commit a third or subsequent DUI or extreme DUI
- To commit a DUI or extreme DUI while a child under 15 years old is in the car
- Under court order to have an ignition interlock device installed in his or her vehicle either to refuse to submit to a BAC test as selected and requested by an officer, or to commit a DUI or extreme DUI offense

Although often called driving under the influence, the offense actually includes being in actual physical control of the vehicle as well. Different standards apply for juvenile and commercial drivers.

Implied Consent

Under Arizona law, drivers who are arrested on suspicion of DUI consent to blood, breath, urine or other bodily substance tests or tests for the purpose of determining driver BAC or drug content. As restated in Carillo v. Hauser, however, this law functions only to take away a driver's right to refuse BAC testing with impunity. It does not take away the power of any driver to refuse his or her express consent to a BAC test. If a driver does refuse to submit to testing, authorities must generally procure a search warrant before they may administer any tests.

Penalties

A driver who refuses to give express consent to submit to a BAC test must be informed that his or her license will be suspended for 12 months or for two years if this is a second refusal within seven years. The driver's refusal does not prohibit the test from occurring but rather requires law enforcement to obtain a search warrant prior to the test. Some locations will be able to obtain a warrant quickly.

If authorities administer a test and the driver is subsequently convicted of DUI, extreme DUI or aggravated DUI, the penalties may include:
- From 10 days to four months in jail
- Fines, fees and assessments up to and in excess of $4,000
- License suspension for 90 days or revocation up to 3 years
- Probation
- Recommendation for counseling
- Mandatory installation of an ignition interlock device
- Vehicle forfeiture

DUI proceedings have a relatively quick timeline and people may face confusion over the administrative and criminal hearings. Drivers with questions about implied and express consent, administrative proceedings regarding their license or criminal prosecution for DUI should contact a knowledgeable attorney for guidance and advocacy.

Article provided by The Gillespie Law Firm, PC
Visit us at www.phoenixduilawyers.com