These people do have a right to a hearing or summary review. It is possible to challenge that. If I represent someone with this charge, it is imperative to act by the required time. If someone forgets to do it or doesn’t want to do it or the time limit for requesting a hearing or summary review passes, their license is going to be suspended for 90 days, for being suspected of driving under the influence.
Now, the 90-day suspension starts 15 days after they are served with this piece of paper called “the admin per se implied consent suspension.” Chances are that will be served to them by the officer before the night is out. The suspension starts 15 days from that date. You are then suspended for 30 days, where you are not allowed to drive at all, if you have not requested a hearing or summary review.
It rests with the Motor Vehicle Division’s discretion, for that final 60 days of the 90 day suspension, whether or not the person can get a to-or-from work or school permit, allowing them to drive to or from their job or their school, during the 60 days.
In Arizona Law, A Refusal to Submit to Blood, Breath or Urine Tests Can Result in a One-Year License Suspension
Now, for people who do not expressly consent, under Arizona law, to provide blood, breath or urine, at the officer’s request, those people are going to have their license suspended for one year, simply because they did not agree to take the test.
The Police May Force You to Provide a Blood Sample to Test Your Blood-Alcohol Level
The problem in Arizona is that even if a person does not expressly agree to take the test, the officer can get a warrant and the officer can get the person’s blood without their consent and the officer can really can get to the point of even physically coercing people to force them to submit to the blood test.
Interviewer: The police are allowed to use force?
Brian Sloan: Yes. They can. They can take steps to enforce a warrant. If a warrant says that you’re allowed to take blood, there have been people that can get restrained in order to procure that sample. It can get pretty bad. People can get pretty bruised up.
Most people are scared of needles. They see a police officer that’s been dealing with people and dealing with transients and who knows what, for the entire day, is all of a sudden coming at them with a needle.
Arizona’s DUI Van Units
Interviewer: When someone is arrested, they will have to surrender their license and then to where will they be transported? Are they going to be taken to a hospital to do their blood or they going to be taken to a police station or a mobile unit to do their breath?
Brian Sloan: Their physical driver’s license will be taken away from them, right then, unless it’s another state’s driver’s license. Arizona has no authority to take another states driver’s license away from person.
Usually, what happens is the officer will either take someone to a DUI van, where there is a phlebotomist, a person who draws blood, who was waiting to draw blood or do a breath test or whatever the city desires.
Most cities have numerous DUI vans parked in a centrally located area, parked where they’re doing routine patrols or a DUI enforcement unit. They park in a centralized area and police officers from all over the Valley will bring people to that DUI van and just process them, get them in, get them out, get all these tubes of blood stacked up in little boxes and they do that nightly.
Which Test Are You More Likely to Undergo?
Interviewer: What’s the preferred testing method? Is it blood or breath or urine?
Brian Sloan: Tempe tends to still do breath tests. Most of the other cities will do a blood test. Blood is considered more reliable in the scientific community. Blood gives the opportunity for the suspect to retest. You can’t retest a breath test. The breath test is given. It’s given twice and then it’s gone.
Blood tests are preferred but the problem is there are only a few labs in Arizona that will do these blood tests and a lot of the cities and justice courts rely on the same labs. There tends to be a backup and there are some cities and justice courts that are waiting months just to get the blood test results.
Phoenix uses its own lab. Phoenix can get blood test results back within a few days and we constantly see where the blood is tested in a batch, with other people’s blood samples, within a few days. In Mesa, like Gilbert, it can take months.
Why Is a Blood Test Preferable?
Unfortunately, the suspect who is now probably charged with the DUI, they’re kind of in limbo. They don’t know what to do. They have to go to court but, technically, there’s no evidence against them but they still have to show up.
Maybe the case will be dismissed but then it’s going to be re-filed if the blood test results come back. Blood is the preferred testing method by defense attorneys because at least there’s something to retest.
With breath tests, such as with Tempe, you know what the results are right then and if a person is smart enough to contact an attorney right away, or go to the hospital and get their own blood draw, that allows the defense attorney to have evidence at the time where it’s relevant. If a defense attorney can get their hands on a blood test right afterwards, right after the person is released, that can be very helpful.
If You Are Arrested for a DUI, How Much Time Will You Spend in Jail?
Interviewer: If a person undergoes a breath test, and the result is over any significant level, such as 0.08 or above, will he or she be put in jail overnight or will they be released on their own recognizance?
Brian Sloan: Most people, as long as they’re not going to be charged with a felony, as long as they have a valid license, there are no children in the car, and they don’t have two or more prior DUI convictions, depending on the city, they are likely to just be released to a friend or released to a taxicab.
Some cities well book someone if their blood-alcohol level is at an extreme limit or if the person is just being a jerk. The officers have the discretion to book anyone they want, to take anyone to jail. Most of the officers are reasonable. If you haven’t been a jerk, if you haven’t caused them problems, then they’ll just let you go.
Some officers will treat people in a worse manner if they do invoke their rights. If someone says, even if they’re nice, “Officer, I’m sorry, I’m going to invoke my right to remain silent. I want to talk to an attorney,” that can anger an officer and you may end up in jail because the officer wants to retaliate.
The officer wants to book you, but you possibly saved yourself many days, months, or even years in jail or prison because you prevented the officer from gathering evidence to be used against you.
If You Are Not Released After Being Arrested, Your Expected Jail Time is a Few Days
Interviewer: If people are booked, how long will they be in jail for suspected DUI? If it’s the misdemeanor level, is it just overnight or they can be in for several days or a week?
Brian Sloan: It’s usually a couple of days. Most misdemeanor DUI cases are released on their own recognizance. They just need to show up to the next court date. Very rarely will a first-time offender be stuck in jail. The more typical situation is that they are going to jail and they’re staying there because they have an outstanding warrant for something else. The majority of the time people arrested for misdemeanor DUI they are going to be released by the officer.
In Arizona Law, Your Driver’s License Can Be Taken Before Your Test Results Are Available
Interviewer: If you are administered a breath test, and you blow a significant level, or if you refuse it, they’re going to take your license at that point, right, but what about for a blood test? I mean, there’s no evidence, so are they going to take your license?
Brian Sloan: Arizona law has changed within about the last year or two and now allows an officer to take someone’s license without the test results. Most agencies are turning towards blood tests and an officer can suspend someone’s license under suspicion of DUI.
If Your License Is Not Immediately Taken Away, You May Receive Notification From the Motor Vehicle Division That It Is Suspended
Most likely, they’re going to rely on the portable breath test results. Even though it’s not reliable enough to use a trial, it is reliable enough for the officer to decide to suspend someone’s license. Now, there are a lot of officers who do not want to take away a person’s license until there is some evidence that they are above the legal limit.
They will fill out the admin per se implied consent form but they won’t serve it on the person and they will tell the person that once they get the blood test results back they will indicate it on the form and they will submit it to the Motor Vehicle Division.
The Motor Vehicle Division will send them a letter stating that the Motor Vehicle Division is aware that you have been suspected of a DUI and their license will be suspended unless a hearing or a summary review is requested. So, it really can be either way.
An officer can just decide, “I’m suspending your license because I think you’re driving under the influence,” or the officer can say, “You know, I want some actual evidence. You’ll get something in the mail.”
Interviewer: For people who undergo blood tests, the MVD may be notified but it may not be notified. Does it depend on the officer’s discretion?
Brian Sloan: That can be a problem sometimes. Officers have been known to hold onto that paperwork and not submit it to the Motor Vehicle Division. Some people wait around for that suspension to happen and it never does. That can actually lead to problems if the case does go to court.
If the person decides to plead guilty by way of the plea agreement or go to trial and, if they lose, it is often more beneficial for the officer to have submitted that paperwork to the Motor Vehicle Division before a decision is made to go to trial or enter into a plea agreement.
Sometimes officers just lose the paperwork or hold onto it for too long. It is up to the officer. There can be problems but the officer’s mistake often comes back to hurt the client, not so much the officer.