DUI and the Law in AZ

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A Local Arizona Lawyer took the time on another AZ forum to lay this out and while I have never dealt with this issue I found the information to be invaluable.
I hope I never see the day where I need to know this but I am still glad to know and now to pass it along to other local AZ Sections.

There was a recent AZ Supreme Court case that held a person must give *explicit* consent to a blood test, absent a warrant. I don't think this holding is at all surprising.

But it reminded me how confused people are about DUI law. Police have propounded, and people have come to believe, that if you refuse a breath/blood test that you automatically lose your license for one year. That's not exactly true.

As with any analysis, let's start with the law:

A.R.S. 28-1321: Implied Consent

A. A person who operates a motor vehicle in this state gives consent, subject to section 4-244, paragraph 34 or section 28-1381, 28-1382 or 28-1383, to a test or tests of the person's blood, breath, urine or other bodily substance for the purpose of determining alcohol concentration or drug content if the person is arrested for any offense arising out of acts alleged to have been committed in violation of this chapter or section 4-244, paragraph 34 while the person was driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor or drugs.

And...

B. After an arrest a violator shall be requested to submit to and successfully complete any test or tests prescribed by subsection A of this section, and if the violator refuses the violator shall be informed that the violator's license or permit to drive will be suspended or denied for twelve months, or for two years for a second or subsequent refusal within a period of eighty-four months, unless the violator expressly agrees to submit to and successfully completes the test or tests. A failure to expressly agree to the test or successfully complete the test is deemed a refusal.

Hopefully you're seeing the pattern... You do have to submit, or lose your license, *AFTER* you've been arrested for DUI. In practice, it means the following...

To arrest someone, the cop must have probable cause that the person committed a particular offense. I won't go into the probable cause standard, but suffice to say that it isn't a paper standard -- the police really need to show some proof/logic.

In practice, police shove a breathalyzer in front of your face and tell you to blow. You do. Then, based on the results, they arrest for DUI. Note that it doesn't happen the way the law prescribes -- you're not arrested and then told to blow. The catch is you were under no obligation to blow; you were not under arrest. When you blew in the above hypo, that's considered a consensual test. Once you consent to a search, you can't unring the bell and all of the evidence comes in against you.

If, however, you do not blow, the officer may still arrest you if he/she has probable cause, based on the totality of the circumstances, that you were driving under the influence. At that time, he may tell you to blow again and if you don't, you will lose your license. However, when you get to court, the whole case will center around whether or not the cop had probable cause to arrest you. That's a pretty big hurdle. If they cannot show probable cause for the DUI arrest, then the breath test never comes in as evidence against you because it's considered fruit of the illegal arrest. Maybe you win, maybe you don't, but you have greatly increased your chances. Moreover, you have set yourself up for a 1000x better plea deal because the prosecutor doesn't have a slam dunk.

Of course, my above scenario begs the question how do you know if you're under arrest. That's a very mushy standard and very fact intensive. Rather than trying to sort the legal standard on the side of Kolb road, the more definitive way would be to ask the cop. For instance...

"Here, blow." "Am I under arrest?" "No" "Then I'm not doing any tests or talking further."

But if he answers yes, then blow and fight it out in court. In both scenarios, what you blow, or didn't blow, will not be an issue.

Hopefully that busted some DUI legal myths.

Be safe everyone and stop the issue before it starts, but if somehow you ever end up in this situation know your rights!

[popo8]

Be safe everyone and stop the issue before it starts, but if somehow you ever end up in this situation know your rights!

the easiest way to not worry about it, is to NOT drink and drive.... it happens though and people just need to know their limits (real limits, not the drunken ones that make you feel invincible)

[biggriff]

yeah im with popo, just don't do it... i have 2 young children in the car with me and my lovely wife and guess what its always the other person who suffers... im not saying i've never done it, but the wiser i get... the more i hand over the keys... we have enough fun going fast... let's all be safe...

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I also have never been in that situation and I do it for two reasons, one as pointed out it normally hurts others more than the DUI Driver in an accident. But to me selfishly I refuse to damage something I put so much hard work into for something as stupid as a drink I can have at home.

But I do know others who have been in this situation and its not uncommon in the enthusiast community. I obviously hope I NEVER have to use this information but I am glad I am now further informed.