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        <title><![CDATA[Implied Consent - James Novak]]></title>
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        <description><![CDATA[James Novak's Website]]></description>
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                <title><![CDATA[Refusing a Breath Test on the Road: What Are My Rights in Arizona?]]></title>
                <link>https://www.azduilaws.com/blog/refusing-a-breath-test-on-the-road-what-are-my-rights-in-arizona/</link>
                <guid isPermaLink="true">https://www.azduilaws.com/blog/refusing-a-breath-test-on-the-road-what-are-my-rights-in-arizona/</guid>
                <dc:creator><![CDATA[James Novak Team]]></dc:creator>
                <pubDate>Fri, 28 Oct 2022 13:24:50 GMT</pubDate>
                
                    <category><![CDATA[Implied Consent]]></category>
                
                
                
                
                <description><![CDATA[<p>In our practice, we often meet with clients who are not familiar with their rights when pulled over by a police officer. Because officers will be more attentive and aggressive during the upcoming holiday season, it is especially important to learn the relevant laws so that you can know exactly what to say and do&hellip;</p>
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                <content:encoded><![CDATA[

<p>In our practice, we often meet with clients who are not familiar with their rights when pulled over by a police officer. Because officers will be more attentive and aggressive during the upcoming holiday season, it is especially important to learn the relevant laws so that you can know exactly what to say and do if you are pulled over for suspected drinking and driving.</p>


<p>In Arizona, all drivers are operating under the Implied Consent Law, <a href="https://www.azleg.gov/ars/28/01321.htm" rel="noopener noreferrer" target="_blank">A.R.S. 28-1321.</a> This statute says that all drivers are subject to breath and chemical testing if they have been arrested for driving under the influence. Thus, if a police officer pulls you over with no reason to think you have been drinking (except under the specific circumstance of a DUI checkpoint), that officer cannot legally force you to take a test. However, if an officer suspects that you are under the influence of alcohol or drugs while operating a motor vehicle, that officer can require you to take a breath or chemical test.</p>


<p>However, police officers still need a warrant to conduct breath or chemical tests, unless the driver explicitly consents to the test. Refusing to expressly consent to a breath test can be risky because officers can still impose consequences for a failure to submit to the test. Importantly, these consequences include a one-year driver’s license suspension. If you refuse to submit to a test a second time, you can face two years with a suspended license.</p>


<p>After your time runs out, you can then complete an alcohol screening and apply for reinstatement of your license. This process is lengthy and burdensome. Thus, while you technically have the right to refuse a breath test on Arizona roads if an officer does not have the necessary warrant, the consequences can be harsh.</p>


<p>In Arizona, a blood alcohol level of .08 or higher is against the law while operating a vehicle. Fighting DUI charges can also be a burdensome process, and the State might bring in evidence related to your refusal to submit to a breath test if your case moves forward.</p>


<p>Ultimately, our biggest advice for Arizona drivers is to make sure you are not operating a motor vehicle with alcohol or drugs in your system. Make a plan: call a friend, find a taxi, or order an Uber. With so much on the line, it’s important to be extra cautious and aware.</p>


<p><strong>Are You Facing Charges Related to Driving Under the Influence in Arizona?</strong></p>


<p>At the law office of James E. Novak, we understand that talking to a police officer can be an incredibly intimidating experience. The constitution provides individuals with fundamental rights, but unfortunately, it is difficult to keep track of how those rights apply when you are in direct contact with an officer. If you think your rights have been violated or if you are facing <a href="/dui/charges-and-penalties/case-stages-for-misdemeanor-and-felony-dui/misdemeanor-dui/">DUI charges</a> in Arizona, give our office a call. We will work tirelessly to make sure your freedoms are protected, and we will not stop until you are satisfied with your outcome. For a free and confidential consultation, call us today at 480-413-1499.</p>


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                <title><![CDATA[Know Your Rights: Implied Consent and Suspected DUIs in Arizona]]></title>
                <link>https://www.azduilaws.com/blog/know-your-rights-implied-consent-and-suspected-duis-in-arizona/</link>
                <guid isPermaLink="true">https://www.azduilaws.com/blog/know-your-rights-implied-consent-and-suspected-duis-in-arizona/</guid>
                <dc:creator><![CDATA[James Novak Team]]></dc:creator>
                <pubDate>Wed, 31 Aug 2022 14:26:30 GMT</pubDate>
                
                    <category><![CDATA[Implied Consent]]></category>
                
                
                
                
                <description><![CDATA[<p>Too often in our practice, we meet with clients that are not aware of their rights when on the road in Arizona. If a police officer pulls you over for suspected driving under the influence, there are laws that are important to know and remember as you interact with the officer. Perhaps most importantly, Arizona’s&hellip;</p>
]]></description>
                <content:encoded><![CDATA[

<p>Too often in our practice, we meet with clients that are not aware of their rights when on the road in Arizona. If a police officer pulls you over for suspected driving under the influence, there are laws that are important to know and remember as you interact with the officer. Perhaps most importantly, Arizona’s implied consent law makes it difficult for drivers to refuse to take a blood, breath, or urine test.</p>


<p><strong>Implied Consent Law</strong></p>


<p>Under the <a href="https://law.justia.com/codes/arizona/2021/title-28/section-28-1321/" rel="noopener noreferrer" target="_blank">implied consent law</a>, any person operating a motor vehicle in Arizona automatically gives consent to a test that allows law enforcement to determine alcohol concentration or drug content if that person is arrested for a DUI. Thus, if an officer has reasonable grounds to believe that a driver is under the influence of alcohol or drugs, the officer can require that driver to take any test of the officer’s choice. The officer can also legally require this test if he or she suspects a driver under the age of 21 has any alcohol in their body.</p>


<p>If the driver refuses the test, the officer can serve a notice of a 12-month suspension of the driver’s license or a notice of suspension of the privilege to drive (if the driver is from a different state). Importantly, a driver who refuses the test can be subject to a warrant that allows the officer to take a blood sample even despite their refusal.</p>





<p>Thus, the key to this law is that if an officer does suspect use of drugs or alcohol, that officer can essentially force you to take a blood, breath, or urine test. If you refuse, there will be significant consequences. However, if an officer has no reason to suspect drug or alcohol use, the officer cannot randomly require you to submit to a test, unless you are passing through a government checkpoint that tests drivers in a systematized, random order.</p>


<p>If a chemical test reveals a blood alcohol content of .08 or higher (.04 or higher for commercial vehicles), the officer can suspend your driver’s license for at least 90 days.</p>


<p>Of course, the most important thing you can do while on the road is to make sure you are not driving while intoxicated. Making a plan before you have any alcohol is the best course of action; arrange for an Uber, a friend, or a taxi to get you home safely.</p>


<p><strong>Your Best Protection: Consulting a Criminal Defense Attorney</strong></p>


<p>If you have been charged with any kind of <a href="/dui/charges-and-penalties/case-stages-for-misdemeanor-and-felony-dui/misdemeanor-dui/">DUI</a> or DWI in Arizona, it is essential that you speak with a qualified criminal defense attorney that can walk you through your rights as well as your options moving forward. At the Law Office of James E. Novak, we can help you fight your charges if your chemical test produced unfavorable results. We understand how to examine the circumstances surrounding a test and fight the prosecution so that you have the highest possible likelihood of walking away with your charges dismissed. For a free and confidential consultation, call us today at 480-413-1499.</p>


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                <title><![CDATA[Know Your Rights: Implied Consent and Blood Alcohol Tests in Arizona]]></title>
                <link>https://www.azduilaws.com/blog/know-your-rights-implied-consent-and-blood-alcohol-tests-in-arizona/</link>
                <guid isPermaLink="true">https://www.azduilaws.com/blog/know-your-rights-implied-consent-and-blood-alcohol-tests-in-arizona/</guid>
                <dc:creator><![CDATA[James Novak Team]]></dc:creator>
                <pubDate>Mon, 18 Jul 2022 09:53:45 GMT</pubDate>
                
                    <category><![CDATA[Implied Consent]]></category>
                
                
                
                
                <description><![CDATA[<p>At The Law Office of James E. Novak, we too often speak with clients in Arizona who are not fully aware of their rights when they get pulled over for a suspected DUI or DWI. Part of our job as defense attorneys is to ensure that you are well prepared for any interaction with law&hellip;</p>
]]></description>
                <content:encoded><![CDATA[

<p>At The Law Office of James E. Novak, we too often speak with clients in Arizona who are not fully aware of their rights when they get pulled over for a suspected DUI or DWI. Part of our job as defense attorneys is to ensure that you are well prepared for any interaction with law enforcement that might come your way, especially when laws change and the legal landscape can be difficult to track. If you are ever pulled over for alleged drunk driving, know that you have rights and that you are not automatically subject to unfair policies or procedures.</p>


<p><strong>Considerations of Refusing a Breath Test</strong></p>


<p>You can be found guilty of driving while intoxicated if your blood alcohol concentration is found to be at least .08 percent. For those driving under 21, however, any alcohol concentration at all found can lead to a license suspension. For officers to determine your blood alcohol concentration, they often conduct blood, breath, or urine tests to measure the amount of alcohol or drugs present in your bloodstream.</p>


<p>A police officer cannot legally require you to take one of these tests if that officer does not have probable cause to believe you have been drinking. This means that if an officer witnesses suspicious driving (for example, swerving, running a stop sign, or failing to use proper signals), that officer might have reason to pull you over and tell you that you are required to take a test measuring your blood alcohol concentration.</p>





<p>Arizona does have what is called “<a href="https://www.azleg.gov/ars/28/01321.htm" rel="noopener noreferrer" target="_blank">implied consent</a>” laws, which means that when you drive, you are automatically consenting to test for blood alcohol concentration or drug content if an officer deems it necessary. You do not, however, have to consent to a test if the officer stopping you does not have reason to actually believe that you are under the influence of drugs or alcohol.</p>


<p>It is also important to note that refusing a test can lead to administrative sanctions such as license suspension. It can also make proving the case against you harder, however, because the State will have very little concrete data to use in its attempt to convince a court that you are guilty.</p>


<p>In Arizona, being found guilty of driving while intoxicated can result in jail time, significant fines, and the revocation of your license. The first line of defense you have against receiving these penalties is making alternate plans when you know you are going to be drinking. Arranging for a ride from a friend or an Uber is the safest option, even if you don’t anticipate engaging in heavy drinking or drug use. While this may seem inconvenient at the time, nothing is more inconvenient that an Arizona DUI arrest.</p>


<p><strong>Defending Your Rights in Arizona</strong></p>


<p>At The Law Office of James E. Novak, we have extensive experience defending persons charged with <a href="/dui/charges-and-penalties/case-stages-for-misdemeanor-and-felony-dui/misdemeanor-dui/">DUIs in Arizona</a>. Our office is standing by, ready to talk you through your options and make sure you know your rights under Arizona law. For a free and confidential consultation, call us today at 480-413-1499.</p>


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                <title><![CDATA[DUI Stops and Testing on the Road in Arizona: Know Your Rights]]></title>
                <link>https://www.azduilaws.com/blog/dui-stops-and-testing-on-the-road-in-arizona-know-your-rights/</link>
                <guid isPermaLink="true">https://www.azduilaws.com/blog/dui-stops-and-testing-on-the-road-in-arizona-know-your-rights/</guid>
                <dc:creator><![CDATA[James Novak Team]]></dc:creator>
                <pubDate>Sat, 23 Apr 2022 09:48:35 GMT</pubDate>
                
                    <category><![CDATA[Dui]]></category>
                
                    <category><![CDATA[Implied Consent]]></category>
                
                    <category><![CDATA[Probable Cause]]></category>
                
                
                
                
                <description><![CDATA[<p>Too often, our clients come to us concerned because of charges resulting from a DUI stop. At the Law Office of James E. Novak, we know and understand how frightening it is to get pulled over, and that when alcohol is involved, the stakes are high. It is thus crucial to know your rights when&hellip;</p>
]]></description>
                <content:encoded><![CDATA[

<p>Too often, our clients come to us concerned because of charges resulting from a <a href="https://www.justia.com/criminal/drunk-driving-dui-dwi/" rel="noopener noreferrer" target="_blank">DUI stop</a>. At the Law Office of James E. Novak, we know and understand how frightening it is to get pulled over, and that when alcohol is involved, the stakes are high. It is thus crucial to know your rights when you are on the road so that you can be prepared if and when you see the flashing blue lights behind you.</p>


<p><strong>Probable Cause</strong></p>


<p>The first thing to know is that if an officer pulls you over and asks you to perform a breathalyzer test, they must have probable cause to suspect that you are under the influence of alcohol or drugs. This means that officers cannot ask you to perform a sobriety test without some indication that you are not sober (the exception to this rule would be if the officers are conducting a DUI checkpoint and you were randomly selected to conduct a test as part of this checkpoint).</p>


<p>Anything that you say or do could be used against you in order for the officer to find probable cause to breathalyze you, test your urine, or test your blood. For example, if you are swerving on the road or if (after the traffic stop) your speech is impaired, the officer will likely have legal grounds to request that you take a sobriety test. In Arizona, it is illegal to drive with a blood alcohol count (BAC) of .08% or higher, but officers can still arrest you if your BAC is lower than .08% and if their perception is that you are “impaired to the slightest degree.” For example, if your BAC is .07% but you are slurring your words when you speak to the officer, that officer can still arrest you under suspicion of a DUI.</p>


<p>more
<strong>Testing Requirements</strong></p>


<p>You are only legally required to take a sobriety test if the officer has probable cause to believe you were intoxicated. The implied consent law in Arizona mandates that you submit to testing requirements. If you have been arrested and refuse to be tested, officers have the power to suspend your driver’s license for one year (or longer if you’ve refused in the past). Refusing a chemical test may make it more difficult for the government to prove a case against you. However, that is not always the case, as the government can also rely upon the officer’s observations indicating you were intoxicated as well as any physical evidence found in the vehicle, such as open containers.</p>


<p><strong>Have You Been Charged with a DUI in the State of Arizona?</strong></p>


<p>At the Law Office of James E. Novak, we work with clients who have been arrested for Arizona <a href="/dui/charges-and-penalties/case-stages-for-misdemeanor-and-felony-dui/misdemeanor-dui/">DUI offenses</a> every day. We know how much is on the line for you when you interact with a police officer, and we are committed to helping you understand your rights so that you can protect yourself and your loved ones. For a free consultation, call our office at 480-413-1499. You can also fill out our online form to have your questions answered.</p>


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                <title><![CDATA[Can Arizona Law Enforcement Force a Motorist to Take a Blood Test?]]></title>
                <link>https://www.azduilaws.com/blog/can-arizona-law-enforcement-force-a-motorist-to-take-a-blood-test/</link>
                <guid isPermaLink="true">https://www.azduilaws.com/blog/can-arizona-law-enforcement-force-a-motorist-to-take-a-blood-test/</guid>
                <dc:creator><![CDATA[James Novak Team]]></dc:creator>
                <pubDate>Tue, 19 Nov 2019 19:13:26 GMT</pubDate>
                
                    <category><![CDATA[DUI Case Law]]></category>
                
                    <category><![CDATA[Implied Consent]]></category>
                
                
                
                
                <description><![CDATA[<p>Seeing the red and blue lights of a police cruiser in the rear-view mirror is among the worst fears for many motorists, especially those who have had a few drinks. Part of what makes getting pulled over for an Arizona DUI so nerve-wracking is the knowledge gap between police officers who do this every day,&hellip;</p>
]]></description>
                <content:encoded><![CDATA[

<p>Seeing the red and blue lights of a police cruiser in the rear-view mirror is among the worst fears for many motorists, especially those who have had a few drinks. Part of what makes getting pulled over for an Arizona DUI so nerve-wracking is the knowledge gap between police officers who do this every day, and motorists who may have never been pulled over before. Learning about motorists’ rights, and the procedure that police must follow when executing an Arizona DUI stop, may put some of these anxieties to rest.</p>


<p>One of the most common questions is whether a police officer can require a motorist to give their blood for a blood test. The short answer is no, however, the question is really more complicated. By obtaining an Arizona driver’s license, motorists agree to consent to blood testing at the request of police. This is referred to as <a href="https://verdict.justia.com/2019/01/30/implied-consent-and-the-fourth-amendment-go-to-the-us-supreme-court" rel="noopener noreferrer" target="_blank">implied consent</a>. However, police officers cannot physically require a person to submit to a blood test.</p>


<p>Thus, under Arizona DUI law, all motorists agree to undergo testing at the request of police. However, if a motorist refuses testing, the police cannot physically force them to give blood. The only way that police can physically force a suspect to give blood is if they obtain a warrant. However, in practice, warrants are rarely obtained in DUI cases.</p>


<p>A recent state appellate <a href="https://cases.justia.com/arizona/court-of-appeals-division-two-unpublished/2019-2-ca-cr-2019-0062.pdf?ts=1573002398" rel="noopener noreferrer" target="_blank">decision</a> illustrates the procedures police may follow if a driver is unwilling to consent to a blood draw and they decide to obtain a warrant. It is important to keep in mind that an officer must establish that there is probable cause for a DUI arrest before they can obtain a warrant.</p>


<p>According to the court’s opinion, an officer pulled over the defendant for several traffic violations. Upon interacting with the defendant, the officer noticed his speech was slurred and he seemed intoxicated. The officer noted that the defendant had “bloodshot, watery eyes,” and a strong “odor of intoxicants” coming from him. The officer also noticed that the defendant’s 13-year-old daughter was in the passenger seat.</p>


<p>The defendant refused to consent to a blood draw, so the officer obtained a warrant. However, the defendant continued to resist, telling the officer “you are not going to take my blood,” as he clenched his fists. The defendant’s conduct, along with the fact that he had “hard veins” resulted in several nurses unsuccessfully trying to take his blood. Eventually, the defendant’s blood was taken, indicating he was under the influence. The defendant appealed his conviction based on the numerous failed attempts to take his blood, but the court affirmed his conviction because the failed attempts were not due to the nurse’s mistake, but the defendant’s conduct and his “hard veins” were the result of intravenous drug use.</p>


<p><strong>Have You Been Arrested for an Arizona DUI?</strong></p>


<p>If you have recently been arrested for an Arizona DUI, contact Attorney James E. Novak for immediate assistance. Attorney Novak is a knowledgeable Tempe <a href="/dui/">DUI attorney</a> with extensive experience handling all types of DUI offenses. To learn more about how Attorney Novak can help you defend against the charges you face, call 480-413-1499 to schedule a free consultation today.</p>


<p><strong>Additional Resources:</strong>
</p>


<ul class="wp-block-list">
<li><em><a href="https://supreme.justia.com/cases/federal/us/588/18-6210/" rel="noopener noreferrer" target="_blank">Mitchell v. Wisconsin</a></em></li>
<li><em><a href="https://supreme.justia.com/cases/federal/us/579/14-1468/" rel="noopener noreferrer" target="_blank">Birchfield v. North Dakota</a></em></li>
</ul>


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                <title><![CDATA[Arizona Court Affirms Denial of Motion to Suppress after Applying Nevada State Law]]></title>
                <link>https://www.azduilaws.com/blog/arizona-court-affirms-denial-of-motion-to-suppress-after-applying-nevada-state-law/</link>
                <guid isPermaLink="true">https://www.azduilaws.com/blog/arizona-court-affirms-denial-of-motion-to-suppress-after-applying-nevada-state-law/</guid>
                <dc:creator><![CDATA[James Novak Team]]></dc:creator>
                <pubDate>Wed, 19 Jun 2019 20:36:13 GMT</pubDate>
                
                    <category><![CDATA[Auto Accidents]]></category>
                
                    <category><![CDATA[Blood Draws]]></category>
                
                    <category><![CDATA[Implied Consent]]></category>
                
                
                
                
                <description><![CDATA[<p>In the vast majority of Arizona DUI cases, the applicable law that governs the case is that of the jurisdiction where the offense occurred. However, in very rare circumstances, another state’s laws may apply. This puts state courts in the difficult position of applying a foreign jurisdiction’s law. In a recent Arizona DUI case, the&hellip;</p>
]]></description>
                <content:encoded><![CDATA[

<p>In the vast majority of Arizona DUI cases, the applicable law that governs the case is that of the jurisdiction where the offense occurred. However, in very rare circumstances, another state’s laws may apply. This puts state courts in the difficult position of applying a foreign jurisdiction’s law. In a recent Arizona DUI <a href="https://law.justia.com/cases/arizona/court-of-appeals-division-one-published/2019/1-ca-cr-17-0547.html" rel="noopener noreferrer" target="_blank">case</a>, the court explained why the defendant’s motion was properly denied under Nevada law by the trial court.</p>


<p>According to the court’s opinion, the defendant’s vehicle swerved into oncoming traffic, colliding with another vehicle. The defendant suffered serious injuries in the accident. While police were investigating the accident, they noticed that the defendant smelled of alcohol. A helicopter took the defendant to a hospital in Nevada.</p>


<p>While in the hospital, Arizona law enforcement called the Nevada hospital and requested they draw the defendant’s blood. The requesting officer did not discuss whether a warrant was necessary, but later testified that he did not believe it was his responsibility to obtain a warrant. The hospital complied with the request without obtaining a warrant. At the time, the defendant was unconscious. The sample was given to a Nevada law enforcement officer. The test results revealed that the defendant had a blood-alcohol content of .21, well over the legal limit of .08.</p>


<p>The defendant moved to suppress the blood-alcohol test results, arguing that under the U.S. Supreme Court case <em>Missouri v. McNeely</em>, warrantless blood draws were unconstitutional. The prosecution argued that this case arose before the <em>McNeely</em> decision was issued, that Nevada law applied to the case, and that the Nevada good-faith exception applied.</p>


<p>The procedural history of the case is somewhat complex, but ultimately, an Arizona appellate court held that the Nevada good-faith exception to the exclusionary rule applied, and that the test-result evidence should not be suppressed. In so holding, the court first noted that the exclusionary rule is imposed as a consequence of illegal police violating the rights of the defendant and is designed to deter police misconduct.</p>


<p>The court concluded that the blood-draw was illegal under Arizona law, but legal under Nevada law. This was based on the application of the good-faith exception to the exclusionary rule. The good-faith exception prevents the suppression of illegally seized evidence if the officer obtaining the evidence was acting in good faith when he came into possession of the evidence. Here, the court first held that Nevada law applied because that was where the blood was drawn. Additionally, it was a Nevada officer that first took possession of the defendant’s blood while he was in a Nevada hospital. The court went on to hold that there would be no deterrent effect of applying the exclusionary rule in this case because there was no misconduct involved. The court explained that the Nevada officer reasonably relied on the request of another law enforcement officer, which was done in good faith.</p>


<p><strong>Have You Been Arrested for an Arizona DUI?</strong></p>


<p>If you have recently been arrested and charged with an Arizona <a href="/dui/charges-and-penalties/case-stages-for-misdemeanor-and-felony-dui/misdemeanor-dui/">DUI offense</a>, contact the dedicated Tempe DUI defense attorney, James E. Novak. Attorney Novak is an experienced criminal defense attorney with unrivaled knowledge, passion, and skill. To learn more about how Attorney Novak can help you defend against the charges you face, call 480-413-1499 to schedule a free consultation today.</p>


<p><strong>Additional Resources:</strong>
</p>


<ul class="wp-block-list">
<li><a href="https://www.azleg.gov/ars/28/01381.htm" rel="noopener noreferrer" target="_blank">A.R.S. 28-1381 – DUI Law</a>s</li>
<li><a href="https://www.azleg.gov/ars/28/01382.htm" rel="noopener noreferrer" target="_blank">A.R.S. 28-1382 –Extreme DUI Laws</a></li>
<li><a href="https://www.azleg.gov/ars/28/01388.htm" rel="noopener noreferrer" target="_blank">A.R.S. 28- 1388 Blood and breath tests: violation, classification, and admissible evidence</a></li>
<li><a href="https://www.azleg.gov/ars/28/01385.htm" rel="noopener noreferrer" target="_blank">A.R.S. 28- 1385 – License Suspension for DUI</a></li>
<li><a href="https://www.azdot.gov/motor-vehicles/ContactMVD" rel="noopener noreferrer" target="_blank">Arizona Department of Transportation – Motor Vehicle Division</a></li>
<li><em><a href="https://supreme.justia.com/cases/federal/us/569/141/" rel="noopener noreferrer" target="_blank">Missouri v. McNeely</a></em></li>
</ul>


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                <title><![CDATA[SCOTUS Will Decide Case that May Impact the Constitutionality of Arizona’s Implied Consent Statute]]></title>
                <link>https://www.azduilaws.com/blog/scotus-will-decide-case-that-may-impact-the-constitutionality-of-arizonas-implied-consent-statute/</link>
                <guid isPermaLink="true">https://www.azduilaws.com/blog/scotus-will-decide-case-that-may-impact-the-constitutionality-of-arizonas-implied-consent-statute/</guid>
                <dc:creator><![CDATA[James Novak Team]]></dc:creator>
                <pubDate>Mon, 27 May 2019 18:12:41 GMT</pubDate>
                
                    <category><![CDATA[DUI Case Law]]></category>
                
                    <category><![CDATA[Implied Consent]]></category>
                
                
                
                
                <description><![CDATA[<p>In April 2019, the U.S. Supreme Court heard oral argument in a case that may call into question the constitutionality of a significant part of Arizona’s implied consent statute. The specific question posed by the case is whether a law that allows a blood test from an unconscious driver provides an exception to the Fourth&hellip;</p>
]]></description>
                <content:encoded><![CDATA[

<p>In April 2019, the U.S. Supreme Court heard oral argument in a <a href="https://www.oyez.org/cases/2018/18-6210" rel="noopener noreferrer" target="_blank">case</a> that may call into question the constitutionality of a significant part of Arizona’s implied consent statute. The specific question posed by the case is whether a law that allows a blood test from an unconscious driver provides an exception to the Fourth Amendment’s warrant requirement.</p>


<p>Arizona’s implied consent statute provides that “a person who operates a motor vehicle in this state gives consent … to a test or tests of the person’s blood, breath, urine or other bodily substance.” The statute also states that “a person who is dead, unconscious or otherwise in a condition rendering the person incapable of refusal is deemed not to have withdrawn the consent … and the test or tests may be administered.”</p>


<p>The area of implied consent has always been controversial, but especially since 2013, when the Supreme Court issued an opinion in the case <em>Missouri v. McNeely</em>. In that case, the court held that the dissipation of alcohol in a DUI suspect’s blood is not an “exigent circumstance” that allows for a warrantless blood draw. Since then, the Court decided another landmark case, <em>Birchfield v. North Dakota</em>, in which the court held that warrantless breath tests are constitutionally permissible, but that blood draws require a warrant.</p>


<p>In the most recent case, the defendant was arrested for driving under the influence. While police officers were transporting the defendant to the police station, they noticed that the defendant was lethargic and decided to take him to the hospital. While the defendant was at the hospital, police officers asked hospital personnel to draw the defendant’s blood. The results indicated that the defendant’s blood-alcohol content was over the legal limit and he was arrested for driving under the influence of alcohol.</p>


<p>The defendant filed a motion to suppress the test results, arguing that the blood draw was impermissible because it was a warrantless search, which is prohibited under the 4th Amendment to the United States Constitution. The prosecution claimed that the implied consent law clearly contemplated warrantless blood draws in the event a motorist was too intoxicated to provide consent. The trial court rejected the defendant’s argument, as did the state appellate courts. In January 2019, the U.S. Supreme Court granted certiorari, agreeing to hear oral argument and decide the case, and last month the case was argued before the Court.</p>


<p>An opinion in the case is expected in the next month. However, it is possible that the court would wait until the next session to issue an opinion. Regardless, the Court’s opinion will have a major effect on DUI cases across the country.</p>


<p><strong>Have You Been Charged with an Arizona DUI?</strong></p>


<p>If you have been charged with an Arizona DUI, contact attorney James E. Novak. Attorney Novak is a dedicated and experienced Arizona criminal defense attorney who has extensive experience handling a wide range of Arizona <a href="/dui/">DUI cases</a>. To learn more about how Attorney Novak can help you with your situation, call 480-413-1499 to schedule a free consultation today.</p>


<p><strong>Additional Resources:</strong>
</p>


<ul class="wp-block-list">
<li><em><a href="https://supreme.justia.com/cases/federal/us/579/14-1468/" rel="noopener noreferrer" target="_blank">Birchfield v. North Dakota</a></em></li>
<li><a href="https://law.justia.com/codes/arizona/2018/title-28/section-28-1321/" rel="noopener noreferrer" target="_blank">A.R.S. 28-1321</a></li>
</ul>


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                <title><![CDATA[Arizona Court Issues Yet Another Implied-Consent Case]]></title>
                <link>https://www.azduilaws.com/blog/arizona-court-issues-yet-another-implied-consent-case/</link>
                <guid isPermaLink="true">https://www.azduilaws.com/blog/arizona-court-issues-yet-another-implied-consent-case/</guid>
                <dc:creator><![CDATA[James Novak Team]]></dc:creator>
                <pubDate>Thu, 21 Mar 2019 18:29:18 GMT</pubDate>
                
                    <category><![CDATA[Implied Consent]]></category>
                
                
                
                
                <description><![CDATA[<p>The issue of implied consent has been a hot topic in courts across the United States since the Supreme Court decided Birchfield v. North Dakota, which allowed warrantless breath tests to be conducted (but disallowed warrantless blood tests). In its most recent Arizona DUI opinion, the Arizona Supreme Court discussed whether Arizona’s implied-consent statute requires&hellip;</p>
]]></description>
                <content:encoded><![CDATA[
<p>The issue of implied consent has been a hot topic in courts across the United States since the Supreme Court decided <em>Birchfield v. North Dakota</em>, which allowed warrantless breath tests to be conducted (but disallowed warrantless blood tests). In its most recent Arizona DUI <a href="https://law.justia.com/cases/arizona/supreme-court/2019/cr-18-0250-pr.html" rel="noopener noreferrer" target="_blank">opinion</a>, the Arizona Supreme Court discussed whether Arizona’s implied-consent statute requires that an arrestee’s consent to test be voluntary. The court held that there is no voluntariness requirement.</p>



<p><strong>The Facts of the Case</strong></p>



<p>According to the court’s opinion, the defendant was stopped for suspicion of driving under the influence. The police officer who stopped the defendant read her the standard warnings, stating:
</p>



<blockquote class="wp-block-quote is-layout-flow wp-block-quote-is-layout-flow">
<p>Arizona law states that a person who operates a motor vehicle at any time in this state gives consent to a test or tests of blood, breath, urine … If you refuse, or do not expressly agree to submit to, or do not successfully complete the tests, your Arizona driving privilege will be suspended. … Will you submit to the tests?</p>
</blockquote>



<p>The defendant agreed to take the test, which showed she had a blood-alcohol content above the legal limit, and she was arrested and charged with DUI. The defendant challenged the admission of the test results, arguing that her consent was involuntary because the warnings provided by police were coercive. The trial court agreed, suppressing the test results and the prosecution appealed.</p>



<p><strong>The Arizona Supreme Court’s Decision</strong></p>



<p>The Arizona Supreme Court initially noted that the question of whether an arrestee consents to a breath test does raise constitutional concerns under <em>Birchfield</em> and other previous cases. Thus, the court limited its review of the case to whether Arizona’s implied consent statute contained a voluntariness requirement.</p>



<p>The court held that it does not, drawing a distinction between the words “agree” and “consent.” The court explained that the current version of the implied-consent statute provides only two options for motorists. Specifically, the statute explains that “a failure to expressly agree to the test or successfully complete the test is deemed a refusal.” Thus, under the terms of the statute, unless a motorist expressly agrees to testing, it is deemed a refusal.</p>



<p>The court went on to explain that the term “consent” was not in the statute’s discussion of breath tests, and only in the context of a motorist’s implied consent to testing by operating a motor vehicle. Thus, the court explained that the definition of “consent” is only relevant “to determine if an arrestee’s initial act implying consent—driving—requires voluntariness.”</p>



<p>The court ultimately held that Arizona’s implied-consent statute does not contain a voluntariness requirement. However, it is important to note that this opinion only applies to breath-test evidence, because under U.S. Supreme Court case law, arrestees have a greater privacy interest in their blood. Thus, blood draws must be preceded by consent or a warrant.</p>



<p><strong>Have You Been Arrested for an Arizona DUI?</strong></p>



<p>If you have recently been arrested for an Arizona DUI offense, contact Attorney James E. Novak to discuss your case and to find out how he can help you defend against the charges you are facing. Attorney Novak is a well-respected Arizona <a href="/dui/">DUI defense</a> attorney with significant experience handling all types of Arizona drunk driving cases, including those involving cases in which his clients have consented to breath or blood tests. To learn more, call 480-413-1499 to schedule a free consultation today.</p>



<p><strong>Additional Resources:</strong>
</p>



<ul class="wp-block-list">
<li><a href="https://law.justia.com/constitution/us/amendment-04/" target="_blank" rel="noopener noreferrer">The 4th Amendment to the U.S. Constitution</a></li>



<li><em><a href="https://supreme.justia.com/cases/federal/us/579/14-1468/" target="_blank" rel="noopener noreferrer">Birchfield v. North Dakota</a></em></li>
</ul>



<p>
<strong>Other Articles of Interest from The Law Office of James Novak’s Phoenix DUI Blog:</strong>
<a href="/blog/breath-tests-implied-consent-and-the-exclusionary-rule-in-arizona-dui-cases/">Breath Tests, Implied Consent and the Exclusionary Rule in Arizona DUI Cases</a>, Phoenix DUI Law Blog, February 25, 2019</p>



<p><a href="/blog/are-arizona-dui-checkpoints-legal/">Are Arizona DUI Checkpoints Legal?</a>, Phoenix DUI Law Blog, March 13, 2019</p>
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                <title><![CDATA[Court Issues Opinion Discussing Arizona’s Implied Consent Statute]]></title>
                <link>https://www.azduilaws.com/blog/court-issues-opinion-discussing-arizonas-implied-consent-statute/</link>
                <guid isPermaLink="true">https://www.azduilaws.com/blog/court-issues-opinion-discussing-arizonas-implied-consent-statute/</guid>
                <dc:creator><![CDATA[James Novak Team]]></dc:creator>
                <pubDate>Wed, 13 Mar 2019 20:00:20 GMT</pubDate>
                
                    <category><![CDATA[Blood Draws]]></category>
                
                    <category><![CDATA[Implied Consent]]></category>
                
                
                
                
                <description><![CDATA[<p>A few posts ago, we discussed Arizona’s implied consent statute, which provides that anyone who operates a vehicle on a public road implicitly consents to chemical testing if police suspect they are under the influence. In the post, we also discussed that while motorists have no legal basis for refusing a test, they cannot be&hellip;</p>
]]></description>
                <content:encoded><![CDATA[

<p>A few posts ago, we discussed Arizona’s implied consent statute, which provides that anyone who operates a vehicle on a public road implicitly consents to chemical testing if police suspect they are under the influence. In the post, we also discussed that while motorists have no legal basis for refusing a test, they cannot be physically forced to undergo chemical testing.</p>


<p>Recently, the Arizona Supreme Court issued an <a href="https://law.justia.com/cases/arizona/supreme-court/2019/cr-18-0286-pr.html" rel="noopener noreferrer" target="_blank">opinion</a> in an Arizona DUI case discussing whether a defendant’s consent to allow chemical testing of his blood was coerced, and thus invalid under the Fourth Amendment. Ultimately, the court concluded that the officer did not coerce the defendant’s consent by explaining to the defendant that his license would be suspended for 12 months if he refused testing.</p>


<p><strong>The Facts of the Case</strong></p>


<p>According to the court’s opinion, the plaintiff was pulled over for suspicion of driving under the influence. After the defendant was arrested, the arresting officer requested the defendant consent to a blood draw. During that request, the officer explained that “Arizona law states that a person who operates a motor vehicle … gives consent to a test … for the purpose of determining alcohol concentration or drug content.” The officer also explained that “If you refuse, do not expressly agree to submit to, or do not successfully complete the tests, your Arizona driving privilege will be suspended.”</p>





<p>The defendant consented to the blood draw, and the test results showed that his blood-alcohol content was .142. The defendant was then charged with driving under the influence of alcohol.</p>


<p>In a pre-trial motion to suppress, the defendant claimed that the test results should be excluded from evidence because they were obtained in violation of his Fourth Amendment rights. Specifically, the defendant argued that his consent was not voluntarily given and was coerced by the officer explaining that his license would be suspended if he refused testing.</p>


<p><strong>The Court’s Opinion</strong></p>


<p>The court held that by advising a motorist of the penalties of refusing a chemical test does not amount to coercion. In so holding, the court acknowledged that prior cases have held that an officer does coerce consent when he tells a motorist that he has no choice but to consent to chemical testing.</p>


<p>However, here, the court noted that the officer merely explained the defendant’s options to him, which happened to include the consequences of a refusal. The court explained that, ideally, an officer would first ask if the motorist consented to testing before explaining the consequences of refusal, but an officer’s failure to do so does not amount to coercion.</p>


<p><strong>Have You Been Arrested for an Arizona DUI?</strong></p>


<p>If you have recently been arrested for an Arizona <a href="/dui/">DUI offense</a>, Attorney James E. Novak can help. Attorney Novak is a dedicated criminal defense attorney with extensive experience handling Arizona DUI cases. Attorney Novak is intimately familiar with the complex laws surrounding Arizona drunk-driving cases, and puts that knowledge to use for each of his clients. To learn more about how Attorney Novak can help you defend against the charges you are facing, call 480-413-1499 to schedule a free consultation today.</p>


<p><strong>Additional Resources:</strong>
</p>


<ul class="wp-block-list">
<li><a href="https://law.justia.com/constitution/us/amendment-04/" rel="noopener noreferrer" target="_blank">The 4th Amendment to the U.S. Constitution</a></li>
<li><a href="https://law.justia.com/codes/arizona/2005/title28/01321.html" rel="noopener noreferrer" target="_blank">A.R.S.§ 28-1321</a></li>
</ul>


<p>
<strong>Other Articles of Interest from The Law Office of James Novak’s Phoenix DUI Blog:</strong>
<a href="/blog/breath-tests-implied-consent-and-the-exclusionary-rule-in-arizona-dui-cases/">Breath Tests, Implied Consent and the Exclusionary Rule in Arizona DUI Cases</a>, Phoenix DUI Law Blog, February 25, 2019</p>


<p><a href="/blog/are-arizona-dui-checkpoints-legal/">Are Arizona DUI Checkpoints Legal?</a>, Phoenix DUI Law Blog, February 12, 2019</p>


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                <title><![CDATA[Breath Tests, Implied Consent and the Exclusionary Rule in Arizona DUI Cases]]></title>
                <link>https://www.azduilaws.com/blog/breath-tests-implied-consent-and-the-exclusionary-rule-in-arizona-dui-cases/</link>
                <guid isPermaLink="true">https://www.azduilaws.com/blog/breath-tests-implied-consent-and-the-exclusionary-rule-in-arizona-dui-cases/</guid>
                <dc:creator><![CDATA[James Novak Team]]></dc:creator>
                <pubDate>Mon, 25 Feb 2019 17:33:40 GMT</pubDate>
                
                    <category><![CDATA[Breathalyzer]]></category>
                
                    <category><![CDATA[Implied Consent]]></category>
                
                
                
                
                <description><![CDATA[<p>The most common type of chemical test performed by police in Arizona DUI cases is breath testing. Breath testing measures the amount of alcohol in a person’s breath and converts the figure to blood-alcohol content. Police prefer breath testing in many cases because it is faster and less expensive than blood or urine testing. Practically&hellip;</p>
]]></description>
                <content:encoded><![CDATA[

<p>The most common type of chemical test performed by police in Arizona DUI cases is breath testing. Breath testing measures the amount of alcohol in a person’s breath and converts the figure to blood-alcohol content. Police prefer breath testing in many cases because it is faster and less expensive than blood or urine testing.</p>


<p>Practically speaking, absent physical coercion, breath testing cannot be performed without a driver’s consent. However, under Arizona’s <a href="https://law.justia.com/codes/arizona/2005/title28/01321.html" rel="noopener noreferrer" target="_blank">implied consent statute</a>, any motorist who “operates a motor vehicle in this state gives consent … to tests of the person’s blood, breath, urine or other bodily substance for the purpose of determining alcohol concentration or drug content” if they are arrested for suspicion of driving under the influence of drugs or alcohol. Thus, while a motorist can physically refuse to provide a sample, they do not have the legal right to do so. Of course, to rely on the implied consent statute, police must provide a defendant with their rights and the consequences of refusal.</p>


<p><strong>What Happens When Police Don’t Follow the Law?</strong></p>


<p>Generally speaking, when police obtain evidence obtained through improper, illegal, or unconstitutional means, that evidence must be suppressed. This concept is referred to as the exclusionary rule, and is a judicially-created doctrine to deter improper police conduct. Indeed, the United States Supreme Court has held that when a defendant’s blood was taken without a warrant or his consent, the blood-test results were inadmissible. The Court based its holding on the inherent privacy interest a person has in their blood and the intrusive means of obtaining a blood sample. However, in a subsequent case, the Court distinguished between taking a defendant’s blood and using a breath sample. This left an open question regarding the admissibility of breath-test evidence that was obtained in violation of the implied consent statute.</p>





<p>In a 2018 case, an Arizona appellate court issued an <a href="/static/2019/02/Novak-DUI-Feb-2.pdf" rel="noopener" target="_blank">opinion</a> allowing the use of breath-test evidence that was obtained improperly. In that case, the court found that the warnings provided to the defendant were coercive, and that his blood was taken in violation of the implied consent statute. However, relying on the distinction between blood and breath evidence, the court concluded that the exclusionary rule does not apply to a violation of the implied consent statute.</p>


<p>The court explained that because the exclusionary rule in Arizona is judicially created, courts are able to craft exceptions. In this case, the court reasoned that the exclusionary rule was created to deter violations of a defendant’s constitutional rights and because there is a diminished privacy interest in a person’s breath, the Fourth Amendment is not implicated.</p>


<p>Thus, under the court’s ruling, even illegally obtained breath samples may be used. However, it is important to note that not all illegally obtained breath samples will be admissible. Samples that were taken in violation of a defendant’s constitutional rights will still be suppressible.</p>


<p><strong>Have You Been Arrested for an Arizona DUI?</strong></p>


<p>If you have recently been arrested for drunk driving in Arizona, you should contact the Law Office of James E. Novak as soon as possible. Attorney Novak is an experienced Arizona <a href="/dui/">DUI defense</a> attorney who routinely handles all types of DUI cases and is familiar with this evolving area of law. To learn more about how Attorney Novak can help you defend against the charges you are facing, call 480-413-1499 to schedule a free consultation today.</p>


<p><strong>Additional Resources:</strong>
</p>


<ul class="wp-block-list">
<li><a href="https://supreme.justia.com/cases/federal/us/569/141/" rel="noopener noreferrer" target="_blank"><em>Missouri v. McNeely</em></a></li>
<li><em><a href="https://supreme.justia.com/cases/federal/us/579/14-1468/" rel="noopener noreferrer" target="_blank">Birchfield v. North Dakota</a></em></li>
</ul>


<p>
<strong>Other Articles of Interest from The Law Office of James Novak’s Phoenix DUI Blog:</strong>
<a href="/blog/how-can-someone-fight-an-arizona-dui-charge/">How Can Someone Fight an Arizona DUI Charge?</a>, Phoenix DUI Law Blog, January 24, 2019</p>


<p><a href="/blog/are-arizona-dui-checkpoints-legal/">Are Arizona DUI Checkpoints Legal?</a>, Phoenix DUI Law Blog, February 12, 2019</p>


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                <title><![CDATA[The Implied Consent Law: Understanding the Basics]]></title>
                <link>https://www.azduilaws.com/blog/the-implied-consent-law-understanding-the-basics/</link>
                <guid isPermaLink="true">https://www.azduilaws.com/blog/the-implied-consent-law-understanding-the-basics/</guid>
                <dc:creator><![CDATA[James Novak Team]]></dc:creator>
                <pubDate>Sat, 30 Jan 2016 07:00:00 GMT</pubDate>
                
                    <category><![CDATA[Dui]]></category>
                
                    <category><![CDATA[Implied Consent]]></category>
                
                    <category><![CDATA[Sobriety Tests]]></category>
                
                
                
                
                <description><![CDATA[<p>Attorney James Novak has helped countless clients throughout the greater Phoenix with criminal law issues, offering robust legal defense and counsel. His expertise in DUI defense and drunk driving law has led to reduced charges, dropped charges, and sound advice moving forward after a DUI. Many of our clients have questions about “implied consent” and&hellip;</p>
]]></description>
                <content:encoded><![CDATA[

<p>
	Attorney James Novak has helped countless clients throughout the greater Phoenix with criminal law issues, offering robust legal defense and counsel. His expertise in <a href="/lawyers/">DUI defense and drunk driving law</a> has led to reduced charges, dropped charges, and sound advice moving forward after a DUI.</p>


<p>
	Many of our clients have questions about “implied consent” and how it applies to their case. Let’s go over the basics of this right now.</p>


<h2 class="wp-block-heading">
	What Does “Implied Consent” Mean?</h2>


<p>
	Basically, an implied consent law means that if a person receives a driver’s license, he or she gives consent to submit to a field sobriety test or chemical test in order to determine intoxication. Simply by getting a license, you agree to take these sobriety tests under appropriate circumstances.</p>


<p>
	There are laws like this in states all across the country, and Arizona is no exception.</p>


<h2 class="wp-block-heading">
	An Example of Implied Consent</h2>


<p>
	Say you are driving home late on a Friday night and you are pulled over. The officer has a reasonable suspicion that you may be driving while under the influence. The officer may have seen a vehicle weave or change lanes erratically, or the officer may smell alcohol on a driver’s breath upon asking for license and registration.</p>


<p>
	Implied consent means that the officer can ask you to submit to a sobriety test and that by having a driver’s license you consent to taking said test or tests.</p>


<h2 class="wp-block-heading">
	Implied Consent and Refusal to Take Sobriety Tests</h2>


<p>
	While implied consent is a given when you receive a driver’s license, a driver can refuse to submit to sobriety tests. Should that occur, however, you will be subject to harsher penalties upon arrest. The main penalty is that you will have to surrender your driver’s license upon arrest and it will be suspended for at least a year.</p>


<p>
	If you are pulled over again for drunk driving and refuse a sobriety test again, your driver’s license will be suspended for two years.</p>


<h2 class="wp-block-heading">
	Should I Refuse a Sobriety Test?</h2>


<p>
	Given the implied consent laws in this country, lawyers, law enforcement, and legal experts have debated this question at length over the years.</p>


<p>
	In many ways, refusing to take a field sobriety test does not help your case, and it’s no guarantee that you will avoid a DUI conviction.</p>


<p>
	On the other hand, some DUI lawyers say that you should at least refuse to take the field sobriety test (which does not scientifically measure your BAC) and the breathalyzer test (which is an inaccurate assessment of alcohol in the bloodstream). Refusing to take a blood test upon arrest while at the station, however, will require you to surrender your license. Even if you refuse, officers can obtain a search warrant as a formality and then subject your to a blood test.</p>


<h2 class="wp-block-heading">
	What You Should Do During a Traffic Stop</h2>


<p>
	If you are pulled over and suspected of drunk driving, it’s generally in your best interest to make the traffic stop as problem-free as possible. This means pulling over, turning off your vehicle, opening your windows, and keeping your hands on the wheel where the officer can see them. If there are passengers in the vehicle, ask them to remain silent and keep their hands visible.</p>


<p>
	When interacting with the officer, be polite and respectful, but do not admit to anything. Do not consent to vehicle searches since there is no search warrant, and avoid trying to talk your way out of the situation.</p>


<p>
	If asked to take a field sobriety test, you may refuse, though it’s generally not in a driver’s best interests to refuse a blood, breath, or urine test if asked to do so.</p>


<h2 class="wp-block-heading">
	Learn More About Your Legal Rights in DUI Cases</h2>


<p>
	For more information about your legal rights following a DUI arrest, it’s important that you <a href="/contact-us/">contact a skilled DUI and criminal defense lawyer</a> today. Attorney James Novak will help you make smart choices when it comes to all of your legal options.</p>


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