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What happens if I refuse to take a breathalyzer test?

When you are pulled over for suspicion of DUI in Arizona, you may first be asked to take a field sobriety test, which you can politely refuse to take. However, you are required to oblige when it is time to take a blood, breath or urine test after you are arrested for DUI. It is important to remember the difference between these two types of tests and which one you can refuse, as well as which one you must take.

Arizona’s Implied Consent Law

Arizona’s implied consent law states that if you are lawfully arrested by a police officer who suspects you have been driving under the influence of drugs or alcohol, you consent automatically to blood, breath or urine chemical testing for determination of your blood alcohol content, also known as BAC.

A breathalyzer, blood or urine test must be administered within two hours of the time during which you were driving. Whether you are provided a breathalyzer, blood or urine test is up to the arresting officer.


Breathalyzer Test Requirements When You Are Not Driving

Most people are not aware that you may even have to submit to a breathalyzer, blood or urine test if you are merely in actual, physical control of the vehicle while you are under the influence. This means that you can be arrested and required to take a test even if you were not driving. “Actual physical control” means that your car is running and can be put in motion.

An example of actual physical control includes a scenario wherein a driver acknowledges he or she should not be operating their vehicle and pulls over to sleep off the alcohol’s effects. If the motor is left running, the driver can be awakened by an officer who may arrest the driver for DUI when grounds for suspicion exist. Such grounds may include the driver’s behavior or an aroma of alcohol on their breath. This scenario falls under the precedent of State v. Love, 182 Ariz 324 (1995).

If you are arrested under actual physical control and reject a breathalyzer, urine or blood test, your driver’s license will be suspended at that moment and a report will be filed resulting in a minimum license suspension of 12 months for a first offense. If you realize your mistake and subsequently request the chemical test within the two hours of being discovered in actual physical control by the officer, you must inform the officer that you will submit to the test. If you do not inform the officer in time or agree, you will suffer the legal consequences of your refusal.


Penalties for Refusing a Breathalyzer Test

A first offense for refusing a breathalyzer or other chemical test leads to a one year driver’s license suspension. Subsequent offenses lead to a two year license suspension. Your license will be immediately turned over to the arresting officer. You will be granted a temporary driving permit that is effective for only fifteen days. During this time, you should work with a Phoenix DUI attorney on your case in order to have a better chance in court.

Immediately upon suspension of your license, the officer will submit a sworn report that specifies his or her belief that you were driving under the influence, including reasonable grounds supporting that belief. The report will also state that you refused the chemical test and you were advised of the consequences of that decision.

After your license has been suspended for 90 days, you can request an ignition interlock license and installation of an ignition interlock device in your personal vehicles. If that is approved, you must use this device every time you wish to drive during the remainder of your suspension.

You will be notified of your license suspension by the state in writing and provided with forms that may be used to challenge the decision. You will have to request a hearing within fifteen days of the notice’s mailing date. Some areas of defense that may be used in court may include whether the arresting officer really had reasonable grounds for your DUI arrest, circumstances of that arrest, why you refused to take the chemical test and whether you understood the ramifications of doing so. The hearing will result in a decision to uphold suspension of your driver’s license or rescind that decision for return of your driving privileges.


Field Sobriety Tests

Field sobriety tests are a different matter in Arizona, when it comes to right of refusal and other issues. If you are pulled over for DUI and are subsequently asked to submit to a field sobriety test, you can refuse without immediate loss of license. You have personal constitutional rights in the state that prohibit an officer from asking too many questions during a traffic stop. He or she cannot deny your right to speak with an attorney or require you to take a field sobriety test.

Field sobriety tests differ from chemical tests in that they are subjective and do not provide concrete results, unlike a blood, breathalyzer or urine test. Field sobriety tests are tests of driver dexterity and balance, which can be affected by many factors outside of the driver’s control. Such factors may include:

  • Being overweight at the time of the test
  • Age beyond 65 years
  • Back, hip, knee, leg or ankle injuries
  • Balance-affecting disability
  • Shoes with heels of two inches or more

When asked to perform this type of test, simply state that you will not answer any questions or perform any tests until you speak with your lawyer. This protects your rights for court and can ensure you have a solid defense in fighting charges.


Why You Shouldn’t Try to Fight Your DUI Alone

For any charges related to a DUI, you need the help of an experienced lawyer. Too much of your lifestyle, income and personal freedoms are on the line as part of a DUI case to risk trying to defend yourself. An attorney can advise you each step of the way, from the field sobriety test request by an officer, through a suspended license, arrest or other factors of such a case.

Call the DMCantor now at 602.307.0808 for the help you need, to ensure the best possible outcome in your criminal case.

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