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The State of Arizona relies on its implied consent law to compel DUI suspects to agree to DUI breathalyzer-, blood and urine tests, as well as field sobriety tests. The implied consent laws in Arizona hold that by operating a vehicle in the state, you automatically agree to submit to DUI testing. Because implied consent applies to anyone operating a vehicle in the state, out-of-state drivers are also required to submit to DUI tests.

Despite the implied consent law, it is still illegal in Arizona for law enforcement to conduct DUI tests without your agreement, unless they obtain a warrant. Courts consider compulsory testing a violation of the 4th Amendment’s prohibition against unlawful search and seizure. To overcome this 4th Amendment protection, law enforcement must establish probable cause and obtain a warrant. A warrant allows law enforcement to conduct forced testing.

If you refuse any DUI test, you face a one-year license suspension for a first refusal, and a two-year suspension for all additional refusals occurring within the next seven years.

What Happens After You Refuse the Test?

The officer will confiscate your driver’s license. He or she will provide a piece of paper telling you that your license will be automatically suspended in 15 days. The officer will likely not mention your right to a hearing on the suspension; however, the paperwork will explain your right to a hearing, and the process for requesting a hearing.

You must request this hearing before the automatic suspension goes into effect. The hearing can be requested online, by telephone or by mail. The request results in an automatic 60-day delay of the suspension. The hearing, which may be conducted telephonically, is your opportunity to explain that you were not impaired and should be allowed to keep your driver’s license.

Winning this hearing can be challenging because the fact you refused the tests despite implied consent may seem suspicious to the Arizona MVD. Therefore, it is advisable to consult an attorney prior to hearing to establish the arguments that are most likely to succeed.

Does Test Refusal Protect You from Criminal Prosecution?

No.

Many DUI suspects wonder if it is worth it to refuse the tests and take the suspension. They reason that the tests will give prosecutors the evidence needed to convict them of a serious crime, perhaps a felony for extreme DUI cases and repeat offenders. Couldn’t they just take the bus for a year or two and avoid the conviction?

If you get lucky or law enforcement is incompetent, it is possible. However, often people who refuse tests get the automatic suspension and are prosecuted anyway.

Law enforcement has several options for gathering evidence despite your refusal. Firstly, no law says prosecutors need test results to gain a conviction. The court is free to consider other evidence and convict you based upon it.

For example, the officer can testify that you were weaving between lanes, smelled of alcohol, were stumbling and slurring words and nodded off several times. The officer may also gather additional witnesses and prosecutors could enter video evidence showing your impaired condition. If the court believes you were impaired and intoxicated, it may enter a conviction without any test results.

Further, though Arizona established .08 as the legal limit, you can be convicted even if you are below it. If there are no DUI test results, the deciding factor is your level of impairment. In the above example, a court would have little trouble believing you were impaired and presented a danger to the public. Arguing the state has no proof you were over the legal limit is unlikely to go far with a judge.

Law Enforcement Will Apply for a Warrant

Arizona law allows law enforcement to apply for a warrant if a DUI suspect refuses the tests. If the officer can establish probable cause, a judge is likely to issue the warrant. At this point, you have no alternative but to take the test.

Test Results are Often Inaccurate

Many people believe that blood tests for alcohol and drugs are very accurate. After all, it seems like a scientific process. However, DUI tests are flawed and often misrepresent the level of intoxication.

Blood tests can easily be off by a percentage point, even if they were conducted properly. Breathalyzers are even worse. If the officer who draws the blood is careless or inexperienced, the test my be even more inaccurate. Also, the process of testing the blood is inherently flawed.

Blood samples are sent to a lab where a machine tests the blood of different samples using the same needle. Obviously, alcohol content can be transferred from one sample to another, leading to even more inaccuracy. For these reasons, blood test results that are only a small amount over the legal limit are suspect.

You Have the Right to Your Own, Private Test

Hospitals use better procedures when testing blood than the state, and their personnel is generally better trained. There is a good chance that a private test will show a lower blood alcohol level versus one taken by a police officer. You have the right to your own test, so ask for it.

By law, upon your request, you must be released within 30 minutes to get your own blood test. Surprisingly, police officers and jail personnel often ignore this request. If they do, it is grounds for the case to be thrown out of court.

The Right to Remain Silent

The chances of a dismissal or acquittal are far higher if the state’s test results are the only evidence against you. Your attorney may have grounds to challenge the results in court. It is up to the prosecution to prove beyond a reasonable doubt that you were over the legal limit or impaired. If they have no evidence of impairment and a potentially inaccurate blood test, reasonable doubt may exist.

For this reason, never admit anything to the officer, and assert your right to remain silent. Anything you say can end up being used as evidence of your impairment. This could spoil a very strong defense. For example, the state’s blood test may show you a little bit above the legal limit but within an arguable margin for error. Your private blood test may show you a little under the legal limit, providing a strong argument for acquittal. If there is no other evidence, the court may agree there is reasonable doubt.

However, if you admitted to the officer that you got drunk, felt sick and the world seemed to be spinning, the prosecution could argue they have proven your impairment; therefore, your conviction is warranted despite any margin for error and the private blood test results.

Implied consent makes refusing a DUI test very costly for suspects because of the high likelihood of a warrant being issued to test their blood anyway. When deciding whether to consent, consider the inaccuracy of these tests and your right to have your own blood test performed. Often, remaining silent and taking your own test results in the charges being reduced or dropped.