TO REFUSE OR NOT TO REFUSE – Drinking, Driving, and Breath and Blood Tests

by Ashley D. Adams

We have all heard by now that driving is a “privilege,” not a right.  However, most people do not realize that by possessing a driver’s license in the State of Arizona, they automatically, under the law, impliedly consent to any test of their blood, breath, or urine if they are suspected of driving under the influence. A.R.S. § 28-1321. If a driver refuses to take the requested test, his or her driver’s license will be suspended for a period of one year. Police are obligated to advise those who are asked to undergo tests about the one year suspension. However, oftentimes, drivers are nervous, distracted, and, of course, impaired, and do not realize until it is too late what it really means to refuse a test.

Oftentimes people refuse to take breath or blood tests because they think it might ultimately help them win their DUI case. After all, without breath or blood evidence, the State’s case is much more difficult.  However, in Scottsdale, police will simply obtain a warrant from the on-duty magistrate judge to obtain a blood sample from the driver. The police officer will immediately prepare an affidavit, claiming therein that there is probable cause to believe that the person is impaired, which the magistrate signs, almost always as a matter of course. As such, the State ultimately obtains the evidence it wanted in the first place.  For most, the biggest inconvenience of a DUI, other than the conviction itself, is not being able to drive. While no one wants to go to jail, jail time for a regular DUI is usually one to ten days. Not being able to drive for one year is, in reality, a much bigger aggravation. Had the driver elected to take the test in the first place, his driver’s license would only have been suspended for a period of 90 days, even if he was impaired. The driver may also apply for a restricted license to drive to and from work after a period of 30 days. Most of our  clients who have refused a breath or blood test wish in hindsight that they would not have.

If you have further questions about this issue, please contact Ashley D. Adams, PLC 480.219.1366 or, Ashley is a criminal defense attorney in Scottsdale and a former federal prosecutor.