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Implied Consent Mistakes People Make When Facing DUI

Interviewer: Have you noticed that people are generally unaware of this phenomenon? You said they may be scared. Do you think they are typically agreeable and are damaging their case because of this?

Brian Sloan: They hurt themselves. Most of the time, judges grant warrants requested by officers for a person suspected of DUI. A person can refuse the breath test, refuse the blood test, refuse the urine test; but they usually regret doing so, because they end up with that 1-year license suspension that they likely would not have had to deal with otherwise. If they were convicted, maybe they’d get a 90-day suspension, but now they’re having to deal with 1 year, because they refused.

I’ve had cases where I’ve been able to get the entire DUI case dismissed, but because they reportedly refused with the officer, they’ve had to still deal with the 1-year license suspension.

Interviewer: What will show up on their record if they refuse all 3 tests?

Brian Sloan: It’s called “implied consent.” It would be an implied consent suspension for 1 year. If it’s the second refusal, it would be for 2 years.

There is a provision in Arizona law that says that, after 90 days of no driving at all, the person can get a to-from work and school driving permit for the remaining 10 and a half months.

Interviewer: As for officer coercion, do they begin applying these tactics from when they first stop the individual? Are they trained in such methods sometimes? Or is it just one of those unsaid kind of tactics?

Brian Sloan: I don’t think they’re necessarily trained in that. They soon realize that it’s a lot more work if someone does refuse. You have to get a warrant. You have to suspend their license for a year. You have to wait for that warrant to come back. You then need to serve it. You may need to get a phlebotomist out that you wouldn’t have otherwise had to do, because you would normally take a breath test, which is quick and simple. I think they realize that they need to provide a little more pressure on suspects to convince them to submit to a blood, breath, or urine test.

One of the big problems is that a lot of these discussions and a lot of these tests are not done in the presence of a video camera. I’ve had many clients that have said that, “Well, the officer threatened me with jail and said that I’d be taken to jail if I didn’t blow into the device.” A lot of times the officer says, “No. It’s not true.” Because there’s no video, judges will tend to believe officers.

Interviewer: From my understanding the video is always turned on. Will they actually go and turn it off?

Brian Sloan: There’s no video at all. It’s not a problem of turning it off; there is just no video. There’s no video camera. There are no personal video recorders.

There is an agreement based on the racial profiling lawsuits with Sheriff Joe Arpaio where I believe one of the requirements is that all of his deputies be outfitted with personal video recorders. I anticipate that those officers will be treating suspects a lot nicer, and that there won’t be as many complaints or as many unfounded allegations.

Interviewer: What about state troopers?  Do they tend to use some of the same methods?

Brian Sloan: I think all police officers do. All police agencies have been alleged to use coercive tactics. The problem is, is that it usually comes down to “He said, she said.”

Interviewer: Depending on what the events after the coercion occurred, could it actually end up helping out someone’s case?

Brian Sloan: If coercive tactics were used, the blood, breath, or urine results could be suppressed. Not necessarily dismissing the case, but the chemical test results could be suppressed.

Can Police Coercion Be a Defense to DUI Charges?

Interviewer: Can you think of any cases where coercion was involved, and there was significant evidence pointing to where the officer had made that error? Were there any cases similar to that, or something that you could talk about?

Brian Sloan: There are many cases where that allegation comes up. However, there are not a lot of cases where the judge will take the side of the suspect over the officer.

Interviewer: As an attorney, are you building up different kind of defenses when it comes to the one aspect there, and there’s another aspect that you bring into play as well? Is that usually how it works?

Brian Sloan: It is a legal issue to see if the judge will suppress the evidence for using coercive tactics. If the judge does not find in favor of the defense, then it is something that can be brought up at trial to show a bias on the part of the officer.

A jury may consider what took place as being improper and hold it against the officer. They could call into question other things that the officer has testified to, deciding that he or she could be biased. The jury could believe that the officer does not have credibility when he or she says something, because of the way a suspect was treated in another instance.

By Brian Douglas Sloan

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Why Brian Douglas Sloan?
AZ DUI Defense Lawyer Brian Douglas Sloan
  • 16+ Years SOLELY Focused on DUI Defense
  • Represented 3,700+ DUI Clients
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    National Association of Distinguished Counsel
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    National Academy of Criminal Defense Attorneys
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