You see the flashing lights behind you. After a traffic stop and roadside investigation, you are arrested on suspicion of DUI. Then an officer asks you to take a blood, breath, urine, or other chemical test.
Can you refuse?
Technically, you can refuse to submit to the requested test. But in Arizona, refusing can carry significant consequences for your driving privileges, and it does not necessarily prevent law enforcement from obtaining evidence for a DUI case.
That is because Arizona has an implied consent law. Under Arizona Revised Statutes § 28-1321, a person who operates a motor vehicle in Arizona gives consent to certain chemical testing when arrested under circumstances covered by the statute. Understanding what implied consent means, when it applies, and what can happen if you refuse a test can be important if you are arrested for DUI.
With over 25 years of experience, Jeff GOULD Law is the Attorney in YOUR Corner. We help Arizona clients understand DUI charges, potential driver’s license consequences, and the legal options available for responding to an arrest.
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What Does “Implied Consent” Mean in Arizona?
Implied consent does not mean that police can perform any test on any driver whenever they choose. Instead, by operating a motor vehicle in Arizona, you are considered to have consented to certain testing of your blood, breath, urine, or another bodily substance to determine alcohol concentration or drug content.
Generally, the law comes into play after an arrest when an officer has reasonable grounds to believe that a person was driving or in actual physical control of a vehicle while under the influence of alcohol or drugs. It can also apply to drivers under 21 when an officer has reasonable grounds to believe they were driving with alcohol in their body.
The law enforcement agency chooses which test or tests will be administered.
Does Implied Consent Apply to Roadside Field Sobriety Tests?
No. Arizona’s implied consent law applies to chemical testing of a driver’s blood, breath, urine, or another bodily substance. It does not mean that a driver has automatically consented to every test an officer may request during a DUI investigation.
Roadside field sobriety tests are part of the officer’s investigation and are different from the chemical testing covered by implied consent. They typically occur before an arrest and may be used to help an officer determine whether there is probable cause to make a DUI arrest.
This distinction is important because the rules and potential consequences associated with refusing a chemical test under Arizona’s implied consent law do not automatically apply to roadside field sobriety tests.
What Happens If You Refuse a Chemical Test?
Refusing the requested chemical test can result in an administrative suspension of your driving privileges. Before accepting your refusal, the officer must inform you of the consequences. Under current Arizona law, a refusal can result in:
- A 12-month suspension for a first refusal
- A two-year suspension for a second or subsequent refusal within 84 months
Failing to expressly agree to the test, or failing to successfully complete it, can also be treated as a refusal under Arizona Revised Statutes § 28-1321. This is one reason a driver should not assume that simply remaining silent, delaying indefinitely, or agreeing without completing the test will necessarily avoid the consequences associated with refusal.
Does Refusing the Test Prevent Police From Getting Your Blood?
No. Not even close. If a person refuses the test selected by law enforcement, Arizona law generally provides that the test will not be given without additional legal authority. However, the statute expressly allows testing in circumstances authorized by law, including pursuant to a search warrant.
That means refusing a requested test does not necessarily prevent law enforcement from obtaining a blood sample. An officer will seek a warrant, and if/when a judge authorizes it, the sample will still be collected and will be used as evidence.
A refusal will create driver’s license consequences and law enforcement will still obtain chemical evidence for the criminal DUI investigation.
Is a License Suspension the Same as a DUI Conviction?
No.
This is one of the most important distinctions to understand after a DUI arrest. An implied-consent suspension is an administrative driver’s license matter handled through the Arizona Motor Vehicle Division. The criminal DUI charge proceeds separately through the court system.
Arizona MVD specifically notes that a driver’s license may be suspended under the implied consent law without a criminal court conviction. As a result, someone arrested for DUI may be dealing with two different processes at approximately the same time:
The criminal case:
This concerns whether the person committed a DUI offense and what criminal penalties may apply.
The administrative license matter:
This concerns the person’s privilege to drive and whether an MVD suspension will take effect. What happens in one proceeding does not necessarily determine what happens in the other.
Can You Challenge an Implied Consent Suspension?
Yes, but there is a deadline.
A driver may request an MVD Executive Hearing to challenge an implied-consent suspension. Under current Arizona law, the hearing request must be received by the department within 30 days after the applicable notice. A timely hearing request generally stays the suspension until the hearing is held.
At the hearing, the issues are limited. They include whether:
- The officer had reasonable grounds to believe the person was driving or in actual physical control of a vehicle under circumstances covered by the statute
- The person was placed under arrest
- The person refused the test
- The person was informed of the consequences of refusing
The MVD hearing is therefore not simply another version of the criminal DUI trial. It is an administrative hearing separate from the criminal matter, and has its own purpose, procedures, and issues.
Because the deadline for requesting a hearing can arrive while the criminal case is still in its early stages, it is important not to ignore paperwork received following a DUI arrest.
What Happens to Your License While You Wait?
When an Arizona driver’s license is surrendered following a refusal, the officer will issue a temporary driving permit that is valid for 30 days.
The suspension generally becomes effective 30 days after the order is served unless a timely hearing request is filed. If a hearing is properly requested, the suspension is stayed while the administrative challenge is pending.
This can make the paperwork provided after an arrest particularly important. The dates contained in those documents can affect both when a suspension begins and the deadline for requesting a hearing.
Can You Get a Restricted License After Refusing a Test?
Potentially.
Some drivers whose licenses are suspended for an implied-consent refusal may be eligible to apply for a special ignition interlock restricted driver license after completing required alcohol or drug screening. Eligibility depends on the circumstances, and drivers who qualify must comply with ignition-interlock requirements during the remaining suspension period. Drivers serving a suspension for a second or subsequent refusal within 84 months are not eligible for this restricted license.
Additional MVD requirements may also apply before driving privileges can be reinstated. Also note that because eligibility depends on the circumstances of the suspension, a restricted license is not automatically available to every driver who refuses testing.
What If You Agree to the Test?
Agreeing to chemical testing does not necessarily mean there will be no driver’s license consequences. For example, a test showing a blood or breath alcohol concentration of at least 0.08 can result in a separate administrative license suspension. Different standards may apply to commercial drivers, certain for-hire or transportation network drivers, and cases involving drugs.
For qualifying test results, the administrative suspension is generally 90 days, although restricted driving privileges may be available depending on the circumstances. This is separate from the longer suspension that can result from refusing chemical testing under the implied consent law.
What If You Were Unconscious or Unable to Refuse?
Arizona’s implied consent statute also addresses situations in which a person cannot make a decision about testing.
A person who is dead, unconscious, or otherwise incapable of refusing is considered not to have withdrawn the consent established under the statute. Testing may therefore be administered subject to the other applicable provisions of the law. Cases involving unconscious drivers, medical treatment, blood draws, or warrants can raise additional legal issues depending on exactly how evidence was obtained.
Take an Implied Consent Suspension Seriously
A DUI arrest can create legal problems on more than one front. Even before the criminal case is resolved, an alleged refusal can put your ability to drive at risk. And the deadlines move quickly.
If you receive an implied consent suspension notice, understanding whether you actually refused testing, whether the statutory requirements were followed, when your suspension is scheduled to begin, and the options available for challenging the suspension can all be important.
That’s where Jeff GOULD Law can help. If you have been arrested for DUI in Arizona, we can help you understand the charges against you, the driver’s license consequences you may face, and the legal options available for responding to the case.
We serve clients in Tucson, Oro Valley, Marana, and other communities across Southern Arizona and help people facing DUI and other criminal charges understand their rights and navigate the legal process ahead.
A DUI arrest does not automatically mean a conviction, but waiting too long to address the administrative side of the case can mean losing an opportunity to challenge a driver’s license suspension.
Facing DUI Charges? Don’t Delay.
Call Jeff GOULD Law, the Attorney In YOUR Corner – TODAY!
DISCLAIMER: The information on this blog/site is not intended to be legal advice. It is for general informational use only. You should consult an attorney for advice regarding your individual situation. Further, this information does not create an attorney-client relationship.