Considerations in Giving or Refusing to Give Consent to a Breath or Blood Test During a DUI Stop: Admin Per Se
Arizona’s Admin Per Se law, A.R.S. § 28-1321, provides that a person operating a motor vehicle in the state of Arizona is required to consent to breath and blood tests whenever so requested by a law enforcement officer having reasonable grounds to believe that the person was driving or in actual physical control of a motor vehicle while under the influence of intoxicating drugs or liquor. Refusing to submit to such a test will result in the automatic suspension of your driver license for twelve (12) months. A.R.S. § 28-1321(B).
There are two reasons why a driver should almost always consent to breathalyzer and blood tests when arrested on suspicion of driving under the influence of drugs or alcohol. First, the harsh Admin Per Se driver license forfeiture rule is automatic: your driver license will be suspended for one year, period. Even if a court of law later finds that the law enforcement officer completely lacked reasonable suspicion to make the traffic stop or to request that you submit to breath and blood testing, your license will still be suspended.
Second, even if you refuse to take a breathalyzer test, the law enforcement officer can, and in all probability will, get a search warrant to draw your blood and conduct the blood analysis test anyway. All that is required for the officer to test your blood against your will is for a court to agree that there is probable cause for the officer to believe that you were in actual physical control of a motor vehicle while under the influence of intoxicating drugs or liquor. Moreover, delaying the blood test by requiring the officer to get a search warrant typically gains you nothing because the State will calculate your blood alcohol content (BAC) at the time of operation of the motor vehicle through a BAC retrograde analysis. Thus, refusing to submit to a breath or blood test will get you to the same place, only now your license is suspended under Admin Per Se regardless of the test results and regardless of whether you are ultimately convicted of a DUI offense.
Consenting to a breath or blood test does not waive your ability to later challenge the validity of the underlying traffic stop, the request that you submit to testing, or the test methodology and results. Specifically, if the court finds that the law enforcement officer lacked reasonable suspicion to conduct the underlying traffic stop or to request that you submit to a breath or blood test, then the State will not be able to use the results of the tests in its prosecution of your criminal DUI case.
Portable Breath Tests v. Evidentiary Breath Testing Devices
It is important to distinguish between these two types of tests. Arizona’s admin per se law does not apply to portable breath tests: the portable breath test can be refused without losing your license. Moreover, neither the results of the test (should you consent to taking the test) nor your refusal to submit to the test is admissible in court. The purpose of the portable breath test is to aid the officer in finding probable cause to make a DUI arrest. In contrast, evidentiary breath testing devices are subject to admin per se. This device most often is located in a DUI van or at the police station, is blueish/gray in color, and has a long hose.
You Have the Right to Counsel, but Only if You Say You Want a Lawyer
Arizona courts have established the rule that someone accused of DUI has the right to assistance of counsel in determining whether to submit to a breathalyzer test as long as speaking to counsel does not interfere with the investigation. State v. Juarez, 161 Ariz. 76, 81, 775 P.2d 1140, 1145 (1989). The right to counsel begins when you have been accused of DUI, meaning that your right to an attorney starts when you have been arrested on suspicion of DUI and are being transported to the station of DUI van to take the evidentiary breath test; you do not have the right to counsel during the initial stop or while trying to decide whether to submit to field sobriety testing, including the portable breath test.
The right to counsel is an extension of the doctrine that defendants have the right to gather independent exculpatory evidence. Arizona’s Due Process Clause guarantees DUI suspects “a fair chance to obtain independent evidence of sobriety essential to his defense at the only time it [is] available.” Montano v. Superior Court, 149 Ariz. 385, 389, 719 P.2d 271, 275 (1986). However, you must explicitly state the police that you want a lawyer in order to be entitled to one. McNeil v. Wisconsin, 501 U.S. 171, 178 (1991) (to assert Fifth Amendment right to counsel, defendant must make a statement showing a desire for an attorney). Police will advise you of your right to an attorney when they read you your Miranda rights. It is a good idea to immediately say that you want a lawyer, as a lawyer will help you make decisions and gather evidence which will aid in your defense.
Medical marijuana users who are requested by law enforcement officers to consent to a blood test face a slightly different analysis than the one presented above. In State ex rel. Montgomery v. Harris, the Arizona Supreme Court held that a person cannot be convicted of DUI under A.R.S. § 28-1381(A)(3), which prohibits driving while there is any proscribed drug or its metabolite in the body, based solely on the presence of Carboxy-THC, a non-impairing marijuana metabolite, in the blood stream. The Harris court left intact DUI convictions based upon the presence of impairing marijuana metabolites, including delta-9-THC, in the blood.
October 21, 2014, in Darrah v. Hon. McClennen/City of Mesa, the Arizona Court of Appeals decided a case that arguably carves out a narrow exception to the general rule outlined above for authorized medical marijuana users accused of DUI due to the presence of delta-9-THC, an impairing marijuana metabolite, in the blood. In Darrah, an authorized medical marijuana user was charged with A.R.S. § 28-1381(A)(1), driving while impaired by a proscribed substance to the slightest degree, and -1381(A)(3), driving while a proscribed drug’s metabolite is in the body. The jury acquitted Darrah of the (A)(1) charge, finding that the State did not prove beyond a reasonable doubt that he was impaired. However, the jury convicted Darrah of the (A)(3) charge because his blood contained 4.0 ng/ml of delta-9-THC.
The Court of Appeals affirmed the conviction, but the Cattani concurrence states that A.R.S. § 36-2802(D) creates an affirmative defense that medical marijuana users have against DUI charges for driving while a proscribed drug’s metabolite is in the body. Specifically, a medical marijuana user cannot be convicted of A.R.S. § 28-1381(A)(3) when the user establishes that the amount of THC or marijuana metabolite in the blood was in insufficient concentration to cause impairment. The burden is on the defendant to prove that the concentration of delta-9-THC in the body was insufficient to cause impairment. The concurrence suggests that authorized marijuana users in Arizona with less than 2 ng/ml of THC in the blood cannot be convicted of -1381(A)(3). It is worth noting that Washington and Colorado’s marijuana DUI statutes provide that a driver must have at least 5 ng/ml of marijuana in the bloodstream to violate their DUI statutes.2
One possible conclusion that can be drawn from the Darrah opinion is that a medical marijuana user might wish to delay being tested for THC in the blood during a traffic stop because retrograde analysis of THC is not currently supported by the forensic toxicology community and delta-9-THC breaks down rather quickly, often falling below detectable limits within 3-4 hours.1 However, as stated above, delay should not be confused with refusal because refusing to consent to a breath or blood test will result in an automatic one-year suspension of your driver license.
The above-described best-case scenarios are not applicable to every DUI incident. Even better is to never operate a motor vehicle while impaired by anything. The reality is, operating a motor vehicle while impaired is dangerous and puts your life as well as the lives of others in danger. The above-analysis assumes a best-case scenario and that you did not hit another car, get into an accident, or kill another human being. Under these scenarios, prison is the reality.
The Prescott Law Group proudly sponsors “Do the Ride Thing” and encourages you to get a designated driver. However, if you are put in a situation where you need an aggressive DUI attorney, call us at (928) 445-1909. We will fight for you.
- Arizona Revised Statute 28-1321 – “Implied consent”
- Arizona Revised Statute 28-1381 – “Driving or actual physical control while under the influence”
- Arizona Revised Statute 36-2802(D) – “Arizona Medical Marijuana Act”
- State ex rel. Montgomery v. Harris (Ariz. 2014)
- Darrah v. Hon. McClennen/City of Mesa (Ariz. 2014)
- 1 Peterson, Brianna. “Practical Solutions to Toxicology Issues in DUI Cases.” Washington State Patrol, Toxicology Laboratory Division.
- 2 Colorado Revised Statutes § 42-4-1301(6)(a)(4), Washington Initiative 502