Physically, you can refuse a blood draw. Legally, technically, you can’t. When you get a driver’s license in the State of Arizona, you impliedly consent to any type of chemical test that an officer requests of you when the officer has probable cause.
While you can physically say, “No, I will not take your breath test. I do not want to do your blood test that you’re requesting of me,” legally speaking, if an officer has probable cause to believe that a person is driving with any sort of impairing substance, a person driving under the laws of the State of Arizona does have to submit to a blood, breath or urine test, which is at the officer’s request. If the person physically refuses or verbally refuses, officers do have the option in this state of getting a warrant, and if that warrant is granted, they can take blood from a person by force, if necessary.
I have had situations where officers will literally pile on top of the person, hold them down, and in some cases start beating on them to get the person to submit. Some people can also get strapped down to a chair. It is not uncommon for someone to refuse; the officer will then usually get a warrant and upon getting the warrant, the suspect will find themselves surrounded by six big police officers, one of which will serve the warrant just to make sure they don’t go crazy and start fighting the officers on the blood draw. Those six officers will get involved and hold the person down if necessary.
Legally, you cannot refuse a blood draw. The issue of whether the officer actually had probable cause is an issue that can be addressed in the courts later on. In most circumstances, it is going to be in the person’s best interest to consent to the requested blood, breath or urine test so as not to lose their license for one year or two years but it’s also a good idea to contact a lawyer during this process to get advice specifically tailored to their situation.
Unfortunately, even though there is good case law on point that says that simply requesting to speak to a lawyer in and of itself should not be considered a refusal, there are still many administrative law judges at the Arizona Department of Transportation, who will nonetheless say that requesting to speak to an attorney is considered a refusal and does lead to a one-year license suspension. So, it’s a catch-22—you’re damned if you do, you’re damned if you don’t.
The safest route and the best advice that I can give is that a person should consent to the requested blood, breath, or urine test made by a police officer after an arrest. However, this does not apply to the little handheld portable breath testing device. A person can refuse that portable breath testing device without any damage to their license and without really any repercussions.
Can a Police Officer Request a Blood Draw Even if You Have Done the Breathalyzer and the Standardized Field Sobriety Tests?
Absolutely! It is completely up to the officer; the officer can choose one test or multiple tests. I’ve seen cases where the police officer gives the person a breath test and the person consented, then a couple of minutes later, the officer says, “Now, I want you to do a blood test.”
Sometimes the person refuses and says, “No, I gave you a breath test. Why do I need also to give you a blood test?” Well, it is at the discretion of the officer. If the officer chooses to have the person do two tests, then that’s what the person needs to do and if the person consents to one test but refuses the other one, then they may end up getting a license suspension for one year.
Every now and again, an interesting situation comes up where the officer will tell the person they want someone to consent to a breath test and the suspect will say, “Well, I don’t want to do a breath test. I want to do a blood test because blood tests are more reliable and I can retest the blood” and the officer will tell the person, “Okay, I’m going to consider that a refusal since you’re not willing to do my breath test. I’m now going to get a warrant to draw your blood by force and consider it a refusal,” even though the person was willing to do a blood test the entire time. Technically, that is still a refusal.
It is up to the officer, not the suspect, but an officer cannot force someone to give a breath test, can’t actually squeeze their lungs to get the breath out. The only other option is to get a warrant or attempt to draw their blood.
Who Actually Draws the Blood? Is it the Police Officer or Someone Else?
It can be a trained police officer, or it can be a phlebotomist. Some police agencies have phlebotomists on call who will come down to the police station to draw blood. Sometimes officers will take people to the hospital and have a nurse or phlebotomist at the hospital draw the blood, but some police officers are trained to draw blood. They have to also be DUI enforcement officers, so there are quite a few officers, depending on the police agency, depending on how many of their officers or deputies are trained as phlebotomists and have received the certification.
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