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.
