Should You Take a Breath or Blood Test After Being Arrested for DUI in Arizona

Posted by Raymond Kimble | Nov 09, 2021 | 0 Comments

Many individuals who are suspected of DUI in Arizona believe they should refuse to take a blood or breath test.  Although individuals have a right to refuse a breathalyzer or blood test, police will often obtain a search warrant for this evidence.  Additionally, people who refuse to provide a breath or blood sample to police after being arrested for DUI can suffer some severe consequences. 

What is the Implied Consent Law in Arizona?

As a condition to obtaining a drivers license in Arizona, people are required to sign a notice which states that they agree to provide a blood, breath or urine sample to police if they are ever stopped and arrested for a DUI.  This agreement exists in many states aside from Arizona.  In order to invoke the Implied Consent Law, officers must allege that:

  1. You were Driving or in Actual Physical Control of a Motor Vehicle
  2. They had Reasonable Grounds to Believe You were Under the Influence of Alcohol or Drugs
  3.  You were Placed Under Arrest for a Suspected Violation of the DUI laws in Arizona.

If you refuse to provide a breath, blood or urine sample after being arrested for DUI, officers will file a Notice with the Arizona MVD that you have violated the Implied Consent agreement.  

What are the Penalties for Refusing a Blood or Breath Test? 

Drivers who refuse a breathalyzer or blood test after being arrested for a DUI in Arizona may face some significant consequences.  Specifically, your drivers license will be suspended for one year.  In some circumstances, you may be eligible for a restricted license which will allow you to drive for work, school, medical appointments, etc.  However, you first must serve a three month suspension.  Additionally, you will only qualify for the restricted license after placing an ignition interlock device on your car for the remaining nine months.  Drivers who have previously refused to take a breath or blood test on a different occasion are not eligible for a restricted license and risk having their driving privileges suspended for two years.     

Undoubtedly, drivers who refuse to take a breath or blood test and have their license suspended for one year will endure some significant hardships.  This includes making it difficult to get to work or school, risking continued employment if they are required to drive for work and finally, paying for the installation and monthly fees associated with an ignition interlock device for nine months.

Can You Fight an Implied Consent Suspension?

A driver has fifteen days to submit a request for a Hearing in order to challenge the one  suspension of driving privileges after refusing to take a blood or breathalyzer test.  The Hearing request must be submitted to the Executive Hearing Office of the Arizona Motor Vehicle Division.  As long as the Hearing request is submitted on time, MVD will place a hold on the suspension and the person can continue to drive.  MVD will then announce a Hearing date at which the driver and his attorney should appear.  The arresting officer will be subpoenaed to appear for this Hearing as well. If a  Hearing request is not made within the required fifteen day period, the suspension automatically goes into effect.

During the Administrative Hearing, the officer must provide evidence that:

  1. You were Driving or in Actual Physical Control of a Motor Vehicle
  2. Police had Reasonable Grounds to Believe You were Under the Influence of Alcohol or Drugs
  3. You were Placed Under Arrest for a Suspected Violation of the DUI laws in Arizona.
  4. You Refused to Provide a Breath, Blood or Urine Sample When Requested by Police
  5. You Were Advised of the Consequences of Refusing to Take a Test
  6. You did not Recant Your Refusal to Provide a Breath, Blood or Urine Sample 

Since this is considered an Administrative or Civil Hearing, the burden of proof is much lower than finding you guilty of a crime.  Here the Administrative Law Judge must only find by a preponderance of the evidence that you refused to take a test in order to suspend your license.

Should You Refuse the Breath or Blood Test?

On many occasions I receive calls from people who have been arrested for DUI, are at the police station and want to know whether they should take a breath or blood test.  Depending upon the circumstances, I usually advise people that they should agree to provide a breath or blood sample.  However, I also advise them that they should obtain an independent blood test immediately upon their release.  I generally advise people to submit to breath or blood testing because police will apply for a search warrant if they refuse and they place their driving privileges at risk of a one year suspension.     

In some circumstances, I will tell people they should refuse an officer's request for breath or blood samples.  These includes situations where an individual:

  • Has a prior DUI within the past 7 years
  • Is being investigated for Aggravated DUI
  • Was involved in an accident resulting in serious injury or death.  

What Happens if You Agree to the Breath or Blood Test?

Obviously, the results of a breath or blood test could be the strongest evidence police or prosecutors may have against you in a DUI case.  If you agree to participate in chemical testing and the results are above .08% alcohol concentration, the officer will report the results to the Motor vehicle Division.   The officer will also serve you with a Notice of Admin Per Se Suspension.  However, the suspension will be for ninety days as opposed to one year following a refusal.  Additionally, if you have no prior DUI history, you will be eligible for a restricted work permit after the first thirty days of the suspension are served.  Finally, your driving privileges won't be re-suspended if you are ultimately convicted of a DUI as long as this is your first offense.   

Call (480) 833-8613 for Immediate Assistance

A  license suspension and DUI charge can have devastating effects on your job, financial security and freedom.  After being arrested for DUI in Tempe, Scottsdale or the greater Phoenix area, you should immediately contact an experienced attorney who can defend your rights and achieve the best possible outcome for you. Raymond Kimble is a former police officer, DUI and felony prosecutor and has represented thousands of people charged with DUI in Tempe, Mesa, Gilbert, Scottsdale, Phoenix and other cities throughout Maricopa and Pinal Counties over the last twenty years. Ray Kimble  will have a clear understanding of all the circumstances in your case, along with the knowledge, skill and experience to protect your drivers license and achieve the best results possible.

About the Author

Raymond Kimble

About Raymond Kimble Attorney Raymond Kimble has built his law practice on the philosophy that each client deserves consistent individual attention. Ray realizes that being charged with a DUI or criminal offense is one of the most stressful events in a person's life. A DUI, felony or misdemeanor arrest can involve prison or jail time, probation, huge fines and a criminal record. Consequently, people who face DUI, felony or misdemeanor charges in Arizona are placed at risk of losing employment or being barred from future job opportunities. Ray works to lessen his client's anxiety by ensuring that they have direct access to him at all times and can reach him by e-mail, cell phone or text during normal business hours as well as nights or weekends if they have a pressing question or concern. Raymond Kimble is a dedicated DUI and criminal defense lawyer who has built a reputation of working tirelessly to protect his client's constitutional rights, their future and liberty. Ray strives to provide the strongest defense possible for each client despite the obstacles they may face. Put Experience to Work for You Raymond Kimble's twenty years of experience with respect to DUI, misdemeanor and felony criminal charges extends well beyond law school where he graduated within the top ten percent of his class. Ray was a police officer for ten years prior to becoming an attorney. As a police officer, Ray was trained in both DUI and criminal investigation and his personal involvement in criminal cases while a police officer certainly gives him a unique perspective when reviewing police reports, interviewing witnesses and challenging physical evidence. Ray often identifies legal issues or mistakes made by police during an investigation through his own personal experience as a patrol officer. In addition to his police experience, Raymond Kimble worked as a prosecutor with the Maricopa County Attorney's Office where he was responsible for prosecuting DUI, felony and misdemeanor crimes. During his tenure as a prosecutor, Ray conducted a number of jury trials and hearings related to the admissibility of evidence. Through his involvement with these cases as a prosecutor, Ray learned how to properly evaluate the strength and weaknesses of a DUI, misdemeanor or felony charge and became skilled in jury selection, argument, and the direct and cross examination of both civilian witnesses, experts and police officers. Of course, Raymond Kimble's expertise extends beyond his experience as a police officer and prosecutor. Specifically, Ray has successfully represented thousands of people during the last fifteen years throughout Maricopa County, Arizona. To best serve his Clients, Raymond remains current on changes in the law as well as police tactics by regularly attending seminars focused on defending criminal charges and reading the latest articles and books related to DUI and criminal defense. Ray also regularly writes criminal defense blogs and posts so that people faced with a criminal charge are better informed about their rights.


There are no comments for this post. Be the first and Add your Comment below.

Leave a Comment