What is Arizona’s Legal Doctrine of “implied consent”?
The doctrine of implied consent holds that any person driving in Arizona implicitly gives the government consent to take a breath, blood or urine sample so that the government can measure your blood alcohol concentration (BAC) or if you have any drug metabolite in your system. Although an officer still needs probable cause to obtain a warrant, and you have a right to demand one, refusing to give consent will have consequences. Please remember that you always have the right to require police to obtain a warrant before taking a breath or blood sample. But if you do, it will have consequences on your license.
If a cop threatens you with the fact that you will lose your license for a year if you refuse to give breath, blood or urine-ASK TO SPEAK WITH YOUR ATTORNEY BEFORE DECIDING.
You have the legal right to speak to an attorney before deciding whether to provide a sample. You should request one right away, and ask whether you can please use your cell phone to call 602-492-8452. If the officer says you are stalling or the two hour window to collect a sample is quickly approaching, there are exceptions to that rule. However, if the officer says you cannot call the attorney you need to ask him specifically why.
SO, you refused the breath test, now what do you do?
You can challenge your refusal and you have a right to hearing with the Arizona Motor Vehicle Division (MVD). This is a civil hearing, not criminal, so the rules of evidence aren’t the same. It is an informal hearing between you and the arresting officer to determine if the officer had probable cause to arrest you for DUI, if you were over a .08 and if you refused to provide a blood, breath or urine sample. On the admin per se affidavit, it tells you that you have 15 days to request a hearing. If you do not send a timely request, your license will be automatically suspended. The timelines for request a hearing a very strict so don’t forget.
Should you request a hearing and how would you go about challenging your license suspension?
There are a number of reasons to request a hearing. Maybe you just need more time to get your affairs in order. Maybe you initially refused but then told the officer you would submit before he or she faxed in a warrant. Perhaps you never refused at all. But Jack, If I didn’t refuse why was my license still suspended? If you had a BAC over .08, the MVD can still suspend your license for 90 days. You can challenge this as well at a hearing. But to be clear, the 1 year suspension is only for those who refuse to provide a sample, while the 90 day suspension are for those who had a BAC reading of over .08.
If you were arrested for DUI in Arizona, call Jack Litwak right away. Call 602-492-8452
Feel free to call us at any time with any questions or inquiries you may have. We offer a free 60 minute consultation to all of our clients. See contact details below.
The Litwak Law Group
Criminal Defense & Civil Litigation Attorney