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Do People Have a Clear Understanding of the Admin Per Se/ Implied Consent Affidavit?

Interviewer: When police officers first issue the form, do they actually explain it to the individual? Do the drivers have a clear understanding of what it means?

This Can Be Difficult to Establish if the Police Stop Was Not Video Recorded

Brian Sloan: It depends. That’s one of the issues with not having video cameras. Did the officer explain it right? The officer will say that they did. If there was any misunderstanding, the officer is basically going to blame it on the person being drove.

Unfortunately, there is no video recording, while there is a form that can be used that specifies to the person in writing. Here are your obligations. Here is what we are asking from you. Will you consent? Here’s a place to sign on the piece of paper. There are officers do not seem to utilize that document.

There is another place on the Admin Per Se form itself that ask for a licensee signature. The officers should point that out to the person or give the person a pen or pencil to write on that form either “Yes. I am consenting” or “Yes. I understand the consequences. I am refusing.”

In Most Cases, the Officer’s Word Is Accepted If There Is No Recording of the Stop

Just like a lot of things in the legal system, the officer is believed based on his or her word and they don’t need to actually prove it. It would be very simple to prove that someone consented or whether someone refused by just showing a piece of paper where the person signed, “Yes. I understand the consequences. I am refusing.”

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More Recently, Drivers Have Begun to Request They Be Allowed to Consult with an Attorney Prior to Submitting to a Chemical Test

But that doesn’t take place because a lot of people feel that they did not refuse and more recently, it seems that people are doing what I think is a smart decision. This is something that case law says is constitutionally mandated that if someone requests to speak to an attorney prior to the blood, breath or urine test, they should be allowed to do so. They must be allowed to do so,based on the constitutional law.

The Motor Vehicle Division Is Still Enforcing the One Year Suspension for Drivers That Ask to Consult with an Attorney

But unfortunately, officers are writing that down as a refusal and most recently, so is the Motor Vehicle Division is on Department of Transportation. They are upholding that as a refusal. They are doing this even though the person has a constitutional right to speak to an attorney. The Division is claiming, “We’re going to count this as a refusal. You’re allowed to speak to your attorney, but you’re also going to get a one-year license suspension because of it.”

This is unfortunate because there is actually case law to our benefit. There’s some case against the defense but unfortunately, recently, when it’s going up before the lower court of appeal judge, he ruled against the defendant. He ruled that if you chose to request an attorney and to speak to an attorney beforehand, which you’re allowed to do, but now, you’re going to have to deal with this consequence of losing your licensure in Arizona.

Are Drivers Actually Being Punished for Exercising Their Constitutional Rights?

It’s really unfortunate and that it really needs to be fought to the higher courts. To the Court of Appeals and there’s a Supreme Court and I have no doubt that they would find that that is unconstitutional. You’re punishing someone for invoking their constitutional rights under the Arizona and Federal Constitution.

But the current standing of the law and the way the lower court of appeal judge has been ruling, they’re saying, “You have your choice to your constitutional rights, but we’re going to punish you. If you choose to go that route and we’re going to consider it a refusal.”

Does the Suspension Violate One of the Miranda Rights as Well?

Interviewer: Now, with that in mind, is this achieved before or after the actual arrest? Doesn’t this violate one of the Miranda Rights?

A Person Has the Constitutional Right to an Attorney, Whether or Not They Are Mirandized after an Arrest

Brian Sloan: It’s after. The law actually states that the person has to be arrested before they are even asked whether they will consent to a blood, breath or urine sample.A person has constitutional rights whether they are read the Miranda Rights or not. And the case law is clear. A person has their constitutional rights. They can request an attorney prior to being requested to take blood, breath or urine test.

They don’t have to be read the Miranda Rights and a lot of times, officers won’t read the Miranda Rights until much later in the process. Usually, after the blood is drawn for that specific reason. They don’t want to give people the impression that they can ask for an attorney.

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The Law Does Support That Agreeing to a Blood Draw Is Not Self-Incriminating

There have also been case laws that have determined that Miranda Rights is supposed to prevent what is known as assault incrimination. And so, someone should be advised that they are entitled to remain silent that they may not incriminate themselves, but that agreeing to a blood far by having their blood taken is not self-incrimination.

It is not using words. It is not admitting to anything. So, the courts have kind of been confusing in saying that, “Yes. You have a constitutional right to speak to an attorney prior to a blood, breath or urine test, but it is not self-incrimination to have your blood taken prior to being read your Miranda Rights.”

And that’s why Miranda Rights are not required prior to having your blood, breath or urine taken. It’s something that I have been trying to change for a couple of years now. I think that Miranda Rights absolutely should be provided to the client prior to requesting their blood, breath or urine sample.

This is because the whole point of Miranda Rights is that you should not ask any questions of an arrested person without notifying them that they have constitutional rights and part of the Admin Per Se/Implied Consent Affidavit is instructing them that under is on the law, they have to provide blood, breath or urine sample will you consent.

The Officers Will Use the Refusal as an Admission That You Were Impaired

And if you’re asking someone if they will consent, you’re asking them a question. If they say, “No. I’m not going to consent”, the officers are going to attempt to use that in trial to say that they refuse the blood test because they were basically admitting that they knew they were drunk.

So, they also are basically trying to use it as self-incrimination even though the courts have said, “This is not supposed to be an issue of self-incrimination”, which is why they don’t get the Miranda Rights in the first place.

Do You Want to Expedite the Suspension? You May Have to Decide to Forego the Hearing

Interviewer: Is there any way to expedite the suspension process?

Brian Sloan: If you request the hearing—you don’t have to wait for the hearing. You can decide, “You know what, I’m going to say forget the hearing. I want the suspension to start right now.” You don’t have to wait until the hearing and most people don’t wait until the hearing.

The issue that I’m not sure of is every now and again is we encounter clients who want their suspension to start sooner than the 15 days after they have been arrested/served.

You Have to at Least Wait for 15 Days to Elapse before Starting the Suspension

I’m not sure that they can be done. I kind of think that it cannot be done because the whole purpose of that 15 days is to give the officer the opportunity to turn in that paperwork and allow the Motor Vehicle Division the time to process that paperwork, which gets back to what we were talking about where sometimes people do the right thing and say, “Okay. I’m just going to start my license suspension as I was instructed by the officer. “And they later find out that because the officer didn’t turn in their paperwork, the defendant or the suspect stopped driving for nothing.

By Brian Douglas Sloan

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AZ DUI Defense Lawyer Brian Douglas Sloan
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