If you have been arrested for a DUI in Arizona, police will request a sample of your blood, breath or urine. These samples are obtained to determine your alcohol concentration, whether you are operating a motor vehicle with illegal drugs in your system or are impaired by prescription medication. A refusal to provide a blood, breath or urine sample to police following a DUI arrest could result in severe consequences. This is known as the Implied Consent Statute and reads as follows:
28-1321. Implied consent; tests; refusal to submit to test; order of suspension; hearing; review; temporary permit; notification of suspension; special ignition interlock restricted driver license
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. The test or tests chosen by the law enforcement agency shall be administered at the direction of a law enforcement officer having reasonable grounds to believe that the person was driving or in actual physical control of a motor vehicle in this state either:
1. While under the influence of intoxicating liquor or drugs.
2. If the person is under twenty-one years of age, with spirituous liquor in the person's body.
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. The violator shall also be informed that:
1. If the test results show a blood or breath alcohol concentration of 0.08 or more, if the results show a blood or breath alcohol concentration of 0.04 or more and the violator was driving or in actual physical control of a commercial motor vehicle or if the results show there is any drug defined in section 13-3401 or its metabolite in the person's body and the person does not possess a valid prescription for the drug, the violator's license or permit to drive will be suspended or denied for not less than ninety consecutive days.
2. The violator's driving privilege, license, permit, right to apply for a license or permit or nonresident operating privilege may be issued or reinstated following the period of suspension only if the violator completes alcohol or other drug screening.
C. 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 provided by subsection A of this section and the test or tests may be administered, subject to section 4-244, paragraph 34 or section 28-1381, 28-1382 or 28-1383.
D. If a person under arrest refuses to submit to the test designated by the law enforcement agency as provided in subsection A of this section:
1. The test shall not be given, except as provided in section 28-1388, subsection E or pursuant to a search warrant.
2. The law enforcement officer directing the administration of the test shall:
(a) File a certified report of the refusal with the department.
(b) On behalf of the department, serve an order of suspension on the person that is effective fifteen days after the date the order is served.
(c) Require the immediate surrender of any license or permit to drive that is issued by this state and that is in the possession or control of the person. The law enforcement agency may do either of the following to a driver license or permit taken into possession under this subdivision:
(i) In compliance with sections 41-151.15 and 41-151.19, destroy the driver license or permit.
(ii) Forward the driver license or permit to the department within five days after the issuance of the notice of suspension.
(d) If the license or permit is not surrendered, state the reason why it is not surrendered.
(e) If a valid license or permit is surrendered, issue a temporary driving permit that is valid for fifteen days.
(f) Forward the certified report of refusal, a copy of the completed notice of suspension and a copy of any completed temporary permit to the department within five days after the issuance of the notice of suspension.
E. The certified report is subject to the penalty for perjury as prescribed by section 28-1561 and shall state all of the following:
1. The officer's reasonable grounds to believe that the arrested person was driving or in actual physical control of a motor vehicle in this state either:
(a) While under the influence of intoxicating liquor or drugs.
(b) If the person is under twenty-one years of age, with spirituous liquor in the person's body.
2. The manner in which the person refused to submit to the test or tests.
3. That the person was advised of the consequences of refusal.
Your Consent is Still Required
Arizona Courts have determined that drawing a person's blood or requiring them to blow into a machine to capture a breath sample is a search which must be in compliance with the 4th Amendment to the United States Constitution. The 4th Amendment provides:
"The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized."
One exception to the 4th Amendment warrant requirement occurs when a person consents to a search or seizure by the police. However, the consent must be voluntary and cannot be the product of any duress, promise or coercion.
The Implied Consent Admonitions used by police officers in Arizona initially contained language which stated "Arizona Law requires you to provide a sample of your blood, breath or other bodily substance for the purpose of determining your alcohol concentration or drug content" after being arrested for a DUI offense. However, in spite of the Implied Consent Statute, courts have determined that a DUI suspect must voluntarily provide a sample of his blood, breath or urine. This requires an examination of the language used by police when instructing a suspect concerning their responsibilities as well as analysis of all surrounding circumstances such as the person's age, presence of coercion, warnings issued by police threats of detention, etc. If a person's consent to testing is shown to be involuntary, the results of any breath, blood or urine tests may be suppressed. Merely advising a person that they may lose their driver's license for one year if they fail to provide a breath or blood sample will not by itself render their consent involuntary.