Interviewer: You mentioned earlier the term, “police officer coercion.” What are you referring to as far as officer coercion?
Brian Sloan: An officer will want to get a blood, breath, or urine test from a suspect as part of a DUI investigation. There are certain laws surrounding how an officer is allowed to get that blood, breath, or urine test. That is going to be evidence that is going to be used against you, and an officer definitely wants that evidence.
Legally you are required to provide a blood, breath, or urine test upon the request of an officer. It’s actually blood, breath, and/or urine test. The officer can request multiple tests. It is part of your privilege to drive that you are presumed to be consenting to providing those chemical tests at the request of the officer.
However, physically a person can refuse. A person can say, “I’m not blowing into that machine.” They can say, “I’m not going to give up my blood.” Officers are supposed to respect that refusal, but they have the option of getting a warrant if a judge believes that there is enough probable cause to issue a warrant for the taking of someone’s blood. You can’t really force someone to give a breath test if they don’t want to, but you can hold them down, strap them into a chair, and forcibly take their blood.
Where issues can come into play, is in the form of officer coercion. We do have an Arizona law specifically on officer coercion. Under 13-3902, entitled Treatment of Arrested Person, Arizona law says that, “No peace officer or other official engaged in administering the criminal law shall use oppressive methods of any kind for the purpose of securing a confession or other evidence of guilt from an arrested person.” The issue comes into play when we’re talking about DUIs. Did the officer do what he was supposed to do, ask for a person’s consent?
If the consent is not forthcoming, then they should either give up or request a warrant from a neutral magistrate. The officer has to fill out a warrant, and they have to fax it in, or electronically submit it, and wait for a response, and a judge might say, “No,” a judge might take a while to get back to them. All the while the clock is ticking.
Sometimes officers will resort to coercion in an attempt to convince the person, improperly, that they should submit to a blood, breath, or urine test. The officer is only supposed to ask for consent, and if consent is not forthcoming, advise the person that, if they don’t consent, their license will be suspended for 1 year for refusing the chemical tests that the officer requested.
What we’ve seen on occasion is the officer saying that if the suspect wants to go home tonight, then they’re going to submit to one of these tests. “If you don’t submit to one of these tests, I’m going to take you to jail. If you want to be released, you’ll submit to these tests,” basically indicating that they are going to be punished, above and beyond losing their license for a year, if they do not agree to do the blood, breath, or urine test.
Usually it fits around jail time. People don’t like jail. They don’t want to be in jail. The threat that they would be taken into jail and held there overnight usually is enough to convince people to all of a sudden decide, “You know what? I do want to consent to the blood, breath, or urine test.” The officer, in threatening jail, or threatening not going home, or not being released, is exactly what the law says that is improper tactics by the police. They are not supposed to use any oppressive methods of any kind for the purpose of securing a confession or other evidence of guilt from an arrested person.