Articles Posted in Implied Consent

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.

Implied Consent Law

Under the implied consent law, 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.

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.

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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.

Considerations of Refusing a Breath Test

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.

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.

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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 you are on the road so that you can be prepared if and when you see the flashing blue lights behind you.

Probable Cause

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).

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.

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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.

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 implied consent. However, police officers cannot physically require a person to submit to a blood test.

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.

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 court explained why the defendant’s motion was properly denied under Nevada law by the trial court.

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.

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.

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 Amendment’s warrant requirement.

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.”

The area of implied consent has always been controversial, but especially since 2013, when the Supreme Court issued an opinion in the case Missouri v. McNeely. 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, Birchfield v. North Dakota, in which the court held that warrantless breath tests are constitutionally permissible, but that blood draws require a warrant.

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.

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