April 22, 2010

Driver’s License Issues

Implied Consent — Under the law, any person who operates a vehicle in the State gives consent to the State to test the driver’s blood, breath or urine to determine BAC if a law enforcement officer has “reasonable grounds” to suspect DUI or that a person under age 21 has any amount of alcohol in his or her body.

This law is codified at A.R.S. 28-1321(A), which states:

A. A person who operates a motor vehicle in this state gives consent… 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 33, 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 under 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 21 years of age, with spirituous liquor in the person’s body.

A.R.S. 28-1321(B) sets forth the procedure for officers to request a test and explains the consequences for refusal.  Generally, if the defendant refuses, he or she will lose driving privileges for one year.  If the defendant refuses for a second or subsequent time within 60 months (five years), he or she will lose driving privileges for two years.  The section text follows:

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 12 months, or for two years for a second or subsequent refusal within a period of 60 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, if the test results show a blood- or breath- alcohol concentration of 0.08 or higher, or if the results show a blood- or breath- alcohol concentration of 0.04 or higher and the violator was driving or in actual physical control of a commercial motor vehicle, the violator’s license or permit to drive will be suspended or denied for not less than 90 consecutive days.

Police can Obtain a Search Warrant for Breath or Blood, if a Person Refuses

Per  A.R.S. 28-1321(D), police can obtain a search warrant if a defendant refuses to take a breath, blood, urine or other bodily fluid test:

A. 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.

Refusal Results in Suspension of Driving Privileges for One Year or Two Years for a Second Refusal Within 60 Months (five years):

If the person is a resident without a license or permit, or has an expired license or permit to operate a motor vehicle in this state, the department shall deny the person the issuance of a license or permit for a period of 12 months after the order of suspension becomes effective, or for a period of two years after the order of suspension becomes effective for a second or subsequent refusal within a period of 60 months.


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