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DUI Refusal In Arizona

Posted by Shawn Hamp | Mar 28, 2017 | 0 Comments

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Consequences Of A Refusal In A DUI Case

When a DUI suspect is placed under arrest in Arizona, a police officer will request that the driver submit to a scientific test to determine their alcohol concentration or presence of drugs in their circulatory system. These tests can be accomplished by having the suspect submit to an intoxilyzer test (breath test), or a blood draw (by a qualified phlebotomist).  

Without a doubt, many suspects do not wish to submit to these tests. There may inevitably be incriminating evidence of drug or alcohol consumption prior to driving. A driver may not want to submit to a blood test because they fear needles or have concerns over privacy. A suspect may not be physically able to submit to a breath test because of asthma or some sort other medical reasons. No matter the reason, refusing to submit to these tests can have a detrimental impact on a Driver's License and the overall DUI case.

When Can A DUI Suspect Refuse a Test?

In any criminal investigation, a defendant does not have to submit to any tests without their voluntary consent.  However they still could lose their driving privileges under Arizona's Implied Consent Law, and a police officer can always request a search warrant to draw blood from a suspect if they refuse to give consent.     

Losing Driving Privileges Because of a Refusal

Once a driver has been arrested for suspicion of DUI, a police officer must give an admonition to the suspect stating that they have been placed under arrest. They additionally will advise that to maintain driving privileges they must give consent for a sample of their blood, breath, or urine to be taken to determine the presence and concentration of alcohol or drugs in their body.  Failure to give this consent will result in having their license suspended for twelve (12) months. This is called “Implied Consent” under Arizona law.

If a suspect is deemed to have refused the requested test, the license suspension will go into effect fifteen (15) days after being served with the notice of suspension. Unless a hearing is requested with the MVD and the Arizona Office of Administrative Hearings within the fifteen (15) days, the suspension is automatic.

Requesting a hearing is vital.  It prevents an automatic suspension and requires the State and the police officer to give sworn testimony before a suspension goes into automatic effect. This allows a defense attorney to cross examine the officer under oath to testify about the circumstances of the DUI investigation and challenge any evidence that the suspect actually refused.

There may be several defenses at an Administrative Hearing to prove that the refusal suspension is not valid.  A suspect may have had difficulty in submitting to a test, or requested to speak to an attorney. Sometimes a suspect is not given a proper reading of the admonitions or might have changed their mind and have given consent to a test without unnecessary delay or inconvenience to the officer administering the tests.

If an administrative law judge determines that the suspect did not refuse a breath or blood test, then the twelve (12) month suspension is dismissed.

Risk of Refusal Does Not Include Field Sobriety Tests

A DUI test includes a scientific test of a suspect's “Blood, Breath, or Urine”. These scientific tests are designed to test for the presence of alcohol or drugs and give an “accurate” reading of the concentration of those drugs in the blood and circulatory system. These tests include a breathalyzer (aka intoxilyzer) or a blood draw.

For purposes of this discussion, alcohol and scientific tests do not refer to Standardized Field Sobriety Tests (FSTs) performed in the field during the DUI investigation and do not include a Portable Breath Tests (PBTs).

FSTs and PBTs are tests used in the field or shortly after a suspect has been pulled over for suspicion of DUI.  They have the limited purpose for a police officer to determine probable cause to make an arrest.

FSTs are also used as circumstantial evidence to prove impairment of a driver.  There is no legal requirement or obligation to perform these tests for a police officer. A PBT is not a device approved and maintained to report an accurate reading of a suspect's alcohol concentration and its results are not admissible in court.  A suspect may refuse to submit to these tests at anytime.  There are no consequences to driving privileges by refusing these Standardized Field Sobriety Tests.

Refusal In a Criminal Case and Search Warrants

Despite Arizona's “Implied Consent Law”, a defendant still has the right to refuse a blood test and not give “Actual Consent” to a blood tests for purposes of the criminal investigation. Several recent cases before the Arizona Supreme Court have affirmed that absent probable cause for a search warrant, or consent, an officer may not draw a sample of the suspect's blood.  

This refusal however does not prevent a police officer from requesting a search warrant be issued by a judge or magistrate to force a blood draw on a suspect.

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Intoxilyzer Room at Kingman PD (Axon Video Screen Shot)

In a typical DUI scenario a suspect who is placed under arrest will be asked to submit to a breath test.  In rural counties in Arizona (such as Mohave County, Yavapai County, or La Paz County) the suspect is usually taken to a station or a jail to perform a breath test on a machine called an Intoxilyzer 8000. Despite some inherent limitations in determining the accuracy of a subject's alcohol concentration and a complete inability to detect the presence of drugs, a breath test is deemed to be more convenient and does not require taking a suspect to a hospital or having a qualified trained phlebotomist on call.

A suspect is read the admonitions of the Arizona Implied Consent Law and an officer will ask the subject for consent to do the breath tests.  Sometimes a defendant will try to “game” the instrument and not blow effectively into the device. Some suspects may be physically limited in giving a sample or some suspects refuse to outright give a sample. In this scenario a police officer will usually request a search warrant.

A police officer must then present an affidavit and request a telephone search warrant to get a blood sample.  The judge or magistrate considering the testimony of the officer given over the phone, will determine if there is probable cause that a crime was committed and then authorize a blood draw.  A suspect is then served with a search warrant to collect their blood and they are usually taken to the hospital to have the blood drawn by a phlebotomist.  If a police officer is properly trained and licensed as a phlebotomist, they may take the subjects blood at the police station.  After being served with the warrant the suspect may voluntarily present their arm for purposes of taking the sample, or they may end up being forcibly restrained for the sample to be taken.  The sample of blood will be collected and preserved in a blood testing kit.

After the blood sample is collected it is later sent to the AZ DPS Crime Lab for analysis.  It could take several weeks or months to process before any tests results are given.  In the meantime a suspect can still get arrested and taken to jail without the known results.  The criminal case will usually proceed.  The administrative law hearing will also be simultaneously scheduled for MVD to determine if the driver's license should be suspended because of the refusal.  

A refusal of a breath or blood test may be used later as evidence at trial. Under A.R.S. 28-1388(D) a refusal of a test is admissible at any criminal or civil proceeding. This circumstantial evidence may be deemed as relevant circumstantial to prove consciences of the defendant's guilt.  This statute has been challenged before as an undue comment on a defendant exercising their 4th amendment rights but as of yet no recorded opinion in Arizona has struck down the constitutionality of this statute.  

Just as it is important to challenge the MVD refusal, it is important for the defense to challenge this evidence at a DUI trial.  By presenting alternative evidence and arguments reasons might be given for a jury to consider before jumping to the conclusion that the defendant was trying to hide their alcohol consumption.

Get Legal Help

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Attorneys Shawn Hamp and Virginia Crews.

Being charged with a DUI and having a refusal in a DUI case can have serious legal consequences to your driving privileges and your criminal record.  Understanding the legal consequences of a refusal and how it can impact you can be complicated.

It is important to seek legal representation to help you with your situation and your DUI case.  At The Law Offices of Shawn B. Hamp, P.C. our criminal trial attorneys are experienced DUI defense lawyers that represent clients during all stages of DUI trial proceedings.  We are available for a Free DUI Case Evaluation by calling 928-753-6868.

About the Author

Shawn Hamp

President and lead counsel for the Law Offices of Shawn B. Hamp, P.C. (An Arizona Professional Corporation), Shawn Hamp has practiced law for more than 15 years with an emphasis in criminal law. An experienced trial attorney, Mr. Hamp has been lead counsel in hundreds of criminal trials and court...

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