Articles Posted in Implied Consent

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 that an arrestee’s consent to test be voluntary. The court held that there is no voluntariness requirement.

The Facts of the Case

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:

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?

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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.

Recently, the Arizona Supreme Court issued an opinion 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.

The Facts of the Case

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.”

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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 speaking, absent physical coercion, breath testing cannot be performed without a driver’s consent. However, under Arizona’s implied consent statute, 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.

What Happens When Police Don’t Follow the Law?

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.

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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 how it applies to their case. Let's go over the basics of this right now.

What Does "Implied Consent" Mean?

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