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Can Someone Refuse A Breath Test / Breathalyzer in Arizona?

Many Arizona drivers have wondered, “Can you refuse to take a breathalyzer test?” when a police officer stops or pulls them over on suspicion of Driving Under The Influence. They may think that it is a good idea; however, refusing a breath test in Arizona can cause more harm than good, depending on the breath test that is refused. 

Arizona is an Implied Consent State, which means that anyone stopped on suspicion of driving under the influence has to agree to submit to a breath test, whether or not they have been driving while impaired by alcohol.  A lot of people feel insulted when police ask them questions or ask them to submit to an alcohol breath test.

Different Types of Breathalyzer Tests

There are two different types of breath tests that can come into play in a DUI investigation, each of them have starkly different consequences.

Portable Breath Test / Preliminary Breath Test

There is the Portable Breath Test / Preliminary Breath Test (PBT), which is a handheld device, that is normally utilized on the scene of a traffic stop.  This type of breath testing is not considered reliable to be used against a person in a court of law in regards to the result of the test.  However, in some circumstances, it can be used to show the presence of alcohol.  This type of test can also be used by law enforcement when determining whether a person’s vehicle should be impounded for one or 20 days, depending on if the PBT result shows an alcohol concentration at or above a .150.

There is very little harm in refusing this test.  The only downfall is that if a blood test is subsequently performed, everyone will have to wait until that blood test result comes back to have any idea what DUI charges, if any, are appropriate.  We do not have a ‘sneak preview’ of the test results if the PBT is refused.

Nonetheless, it is much better to refuse this test, because it can lead to the vehicle being impounded for 20 days, instead of one day, and does lead to additional evidence of probable cause to arrest.

Intoxilyzer Breath Testing Device

The other type of breath test is a big machine that normally sits on a desk at a police station, or in a DUI Van.  On occasion, it will be in the backseat of a patrol car.  This one has a long tube that is attached to a large machine.  This machine is called an Intoxilyzer Breath Testing device.

If law enforcement requests that you blow into this breath testing device, in Arizona, you absolutely do want to complete it, and complete it properly.  This advice may not be helpful for another state, as each state treats this issue a bit different, but in Arizona, you absolutely do want to consent to the Intoxilyzer breath test, and the blood test if that is requested as well, or instead of the Intoxilyzer, as to refuse to do so, or not successfully complete the test leads to a one year license revocation of your Arizona License or Privilege to Drive.

Even if you are from a different state, and even if you are licensed in another state, and have no intention on returning to Arizona, you will still want to consent to the requested blood and/or breath test, as refusing or not successfully completing these tests will impact your home state license.  

In any event, refusing either or both of these tests in Arizona does not mean that law enforcement will not have evidence against you.  Your Arizona license or Arizona privilege to drive will be suspended for a year, and the officer very likely will simply get a warrant in a few minutes, and draw your blood pursuant to the warrant.

So law enforcement still gets the evidence they need in a DUI investigation, and you are now dealing with one year.

Also, unfortunately, as Arizona case law currently stands, even if the case gets dismissed, or you are proven to have had no alcohol / drugs / medications in your system, you will STILL be facing the one year suspension for refusing.

Actual innocence, as things stand now, is not a defense to the one year suspension on the allegation that you refused the officer’s request for a blood and/or breath test.

It is also in the officer’s discretion which test is performed.

If you tell the officer that you won’t do a breath test, but will do a blood test, the officer will very likely indicate that as a refusal, get a warrant, draw your blood, and notify the Arizona Department of Transportation / Motor Vehicle Division that you refused the requested test… even though the officer did exactly what you said you were willing to do.

What Happens if You Refuse a Breathalyzer in Arizona?

In the state of Arizona, a driver does not have to legally submit to the Intoxliyzer Breath Testing Device until the officer has a warrant.  However, if they refuse the officer’s request for a breath test on an Intoxlyzer,, they won’t be happy with the outcome. Refusing a breathalyzer  – refusing the Intoxilyzer – in Arizona will result in their driver’s license being taken away or suspended for at least one year.  Even if the person is not convicted of the DUI, simply refusing the breath test will lead to a suspension of the driver’s license or privilege to drive.

Arizona Breathalyzer Laws

Arizona’s Implied Consent Law is defined under section 28-1321(A) of the Arizona Revised Statute. Refusing to take a breath test in accordance with the Arizona breathalyzer laws will result in the following:

  • 1st Offense refusal to undergo the breath test will lead to a one-year suspension of their driver’s license or privilege to drive.
  • 2nd Offense refusal to take the breath test, within 7 years of a previous refusal, will result in a 2-year suspension of their driver’s license or privilege to drive.
  • 3rd Offense refusal to take the breath test, within 7 years of two  previous refusals, will also result in a 2-year suspension of their driver’s license or privilege to drive.

Once the driver’s license is taken away by the officer, they will be issued a temporary driving permit which will be good for 30 days from the date of arrest or date of service, whichever is later. The officer or Arizona Department of Transportation should notify the arrestee about the driver’s license suspension, and they should be presented with forms that they can use to challenge the suspension. 

A hearing must be requested within 30 days of the issuance of the notice. This hearing is important, however, there are certain pitfalls that can come with how conducting the hearing is handled.  If handled incorrectly, there is the potential for three years of SR22 High Risk Insurance, which may have been able to be prevented; and there is the potential for a much longer term of no driving.  This is why it is incredibly important to not only have an Attorney request and represent you at this hearing, but having an Attorney that knows what they are doing to best protect you is of the utmost importance.

Surprisingly, winning this hearing is always not the best option.  Oftentimes it is actually better to lose the hearing a specific way, rather than winning the hearing.

Knowing the difference is what distinguishes the lawyers who want to handle things correctly, and those that just want to put on a show for their clients.

Can You Refuse To Take a Breathalyzer Test: A DUI Attorney’s Role

Dealing with DUI charges in Arizona, especially concerning breathalyzer tests, requires seasoned legal expertise. A skilled DUI Attorney plays a crucial role in defending your rights and minimizing potential penalties. Here is what happens if you refuse the Intoxilyzer  breath testing device in Arizona, but get the help of an Attorney:

  • Understanding Implied Consent – An Attorney focused on DUI Defense Representation can explain Arizona’s Implied Consent Law clearly, outlining the legal implications of refusing a breathalyzer test and the subsequent consequences.
  • Defense Strategy – Attorneys evaluate the circumstances of your case, including the validity of the traffic stop, the conduct of the arresting officer, and the administration of sobriety tests. They use this information to craft a strong defense strategy designed to effectively contest the DUI charges.
  • Navigating Legal Procedures – They guide you through the legal process, ensuring all deadlines are met, such as requesting a hearing with the Arizona Deparment of Transportation (ADOT) /Motor Vehicles Division (MVD) to contest the license suspension / privilege to drive suspension promptly.
  • Negotiation and Representation – In negotiations with prosecutors or during court proceedings, Attorneys advocate on your behalf to achieve the best possible outcome, whether through reducing charges, negotiating plea bargains, or defending you at trial.
  • Minimizing Consequences – By leveraging their knowledge of Arizona DUI laws and their courtroom experience, Attorneys strive to minimize the impact of DUI charges on your driving privileges, criminal record, and overall life.
  • Expertise in DUI Defense – A Specialized DUI Attorney with a solid line of successful accomplishments brings extensive experience in handling DUI cases, ensuring that you receive informed and effective legal representation.

Frequently Asked Questions

What if I refuse a breathalyzer test?

Arizona is an Implied Consent State, which means that anyone stopped on suspicion of driving under the influence must agree to submit to a breath test. Refusing to take the Intoxilyzer breath test can result in severe consequences concerning your license / privilege to drive

Are there good reasons to refuse a breathalyzer?

No.  Even if you are completely sober, and you know that the Intoxilyzer Breath Testing Device would show that you have no alcohol in your system, you absolutely want to blow into the Intoxilyzer – and provide a blood sample if requested – so as to ensure that you don’t have your license suspended for a year, simply because you refused.

There is no ‘actual innocence’ on the one year suspension.  Even if you are discovered to have no alcohol, no drugs, and no medications in your system, and a case is never brought against you, and it can be shown that whatever the officer believed, they were absolutely and completely wrong, under Arizona law, the DUI suspect can STILL have their license suspended for one year for refusing the requested blood and/or breath test.

Can you be charged with a DUI without being tested by police officers?

Yes, in Arizona, law enforcement officers can charge someone with DUI based on other evidence, such as observations of impairment, performance on field sobriety tests, witness statements, or admissions by the driver. This means that even without a breathalyzer or blood test, sufficient evidence can still lead to a DUI charge and potential conviction.

Although this rarely happens, technically a person can be charged with, and convicted of, being Impaired to the Slightest Degree, without any blood or breath results.

Can you be convicted of DUI without a breathalyzer test in AZ?

Yes, a DUI conviction in Arizona does not necessarily require a breathalyzer test. Prosecutors can use other evidence to prove impairment, including officer observations, witness testimony, body camera footage, and/or blood results.

Defend Your License and Rights with Expert Legal Counsel

It is important to consult with a DUI Defense Lawyer concerning the request for a hearing with the Arizona Department of Transportation (ADOT) / Motor Vehicles Division (MVD) to challenge the license suspension as soon after the arrest as possible. You can also discuss whether the arresting officer had reasonable grounds to believe you were driving under the influence at the hearing. If you feel that the arresting officer did not have grounds or reason to test you, that is an element that can be contested at the  hearing. 

Therefore, it is imperative that you act quickly and seek counsel from an experienced DUI Defense Attorney in Phoenix, Arizona. Call the Law Offices of Brian D. Sloan at 480-900-0384 or 602-900-0384 to book a Free Initial Consultation if you’re facing a DUI charge in Arizona.

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Brian Douglas Sloan


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Why DUI Attorney Brian Douglas Sloan?


19+ Years SOLELY Focused on DUI Defense


4,200+ DUIs Successfully Defended

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  • Only DUI "Power Lawyer" in the Nation Featured in USA Today, 2022

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“I am one of only a handful of Phoenix DUI Lawyers that focuses solely on DUI Defense representation.”

I have spent my entire career SOLELY focused on Arizona DUI Defense Representation, having personally defended more than 4,400 Driving Under the Influence (DUI) clients in the past 19+ years.

If you’re looking for a Divorce Attorney, Tax Attorney, Civil Attorney, etc., I can comfortably say, "I’m not the one for you." I ONLY defend DUI cases in most of Maricopa County, Arizona.

Coming up with traditional, as well as outside-the-box motions and defenses for my clients, often with good results, is the hallmark of my practice.

Lawyers that say they are "aggressive" or "will fight for you" are a dime a dozen. They use these phrases because it is a proven advertising phrase. Being "aggressive" isn’t the same as being good, and is often used to put on a show to hide the fact that they aren’t doing anything meaningful for the client.

The same is true for the Lawyers claiming to do DUI Defense, and Criminal Cases, and Accident Cases, and Divorces, etc. A Jack-of-all-Trades is a master of none! By handling all sorts of cases, they take away from their ability to truly focus on DUIs, and keep up-to-date on the latest changes in DUI Defense Representation.

What I offer is intelligent, quality DUI Defense at an exceptional price. Unlike many other law firms, if you hire The Law Offices of Brian D. Sloan, you actually get me representing you, doing all the work, and working the case. You aren’t hiring one guy with all the experience, but getting the underling with very little knowledge or experience.

I work seven days a week on my client’s cases, and spend hours laying all my thoughts out for my clients in writing, so they can understand their options, and my recommendations. No other DUI Lawyer in the state does this. I try to do what I can to go above-and-beyond for my clients. I hate when the businesses I deal with nickel-and-dime me with hidden costs, and I take pride in not doing that to my clients.

I have not only taught other lawyers how to do DUI Defense Representation at statewide seminars, but I have produced DUI Legal Guides used by defense lawyers across Arizona.

I am one of Arizona's most award-winning DUI Defense Lawyers, as well as being recognized nationally. I was the only DUI Defense Lawyer in the United States named a "Power Lawyer" in a 2022 issue of USA Today

There are no other private Lawyers in Arizona that have personally defended more DUI cases than I have. And as a bonus, I offer a very reasonable flat rate for my legal services, with a payment plan, and without any hidden charges. This guarantees that I offer some of the most competitive rates among all Arizona DUI Attorneys, while being a well-documented and preeminent leader in the field of DUI Defense Representation.

Over the years, countless people have come to me after discovering that their first lawyer made a mistake, gave them false hope or false promises, or simply took their money and didn't do much to advance their case. And you would be surprised at how often this happens.

So, instead of wasting time and money on the wrong DUI Defense Attorney, do yourself a favor and get the proven and well-recognized best DUI Lawyer in Phoenix and the surrounding areas of Maricopa County.

You can reach me on my personal cell phone at 480-720-7839 for a Free ‘In Depth’ Consultation.

I personally defend DUI cases in urban Maricopa County City, Town, and Justice Courts, including:

Ahwatukee / Agua Fria / Arcadia Biltmore / Avondale / Buckeye / Chandler / Country Meadows / Desert Ridge / Dreamy Draw / Downtown / East Mesa / El Centro / Encanto / Gilbert / Glendale / Goodyear / Guadalupe / Highland / Kyrene / Litchfield Park / Maryvale / McDowell Mountain / Mesa / Moon Valley / North Mesa / Peoria / Phoenix / Queen Creek / San Marcos / San Tan / South Mountain / Scottsdale / Tempe / University Lakes / West McDowell / West Mesa / White Tank

For any other Courts in the State of Arizona, including Felony cases, I would recommend my associates on The Arizona DUI Team, whom I work closely with, but I am not the one personally representing the client.

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Brian Douglas Sloan

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