What is admin per se in Arizona and how to challenge it?

by Aug 2, 2015Articles

What is admin per se in Arizona?

Background: In order for implied consent law to make any sense, a little background is in order. Whether we like it or not, driving is a privilege—not a right—under Arizona law. This has significant legal consequences because it means the government can impose motor vehicle penalties if you choose to exercise a constitutional right. While I disagree with this law, it’s important to understand because it affects all of us that drive.

Although it’s illegal to take a right away from you without due process of law, that’s not true for privileges. The problem with this logic is that public transportation is abysmal in most of Arizona. Without being able to drive, your ability to travel, associate and work will be severely hampered.

So what is the legal doctrine of implied consent?

The doctrine of implied consent holds that any person driving in Arizona implicitly gives the government consent to take a breath, blood or urine sample so that the government can measure your blood alcohol concentration (BAC) or if you have any drug metabolite in your system. Although an officer still needs probable cause to obtain a warrant, and you have a right to demand one, refusing to give consent will have consequences. Please remember that you always have the right to require police to obtain a warrant before taking a breath or blood sample. But if you do, it will have consequences on your license.

What happens if I refuse to provide a breath, blood or urine sample?

If arrested for DUI, the officer will read warnings from the admin per se affidavit. The document warns you that you must provide a sample or you’ll lose your license for 12 months. If you refuse to give a blood, breath or urine sample, the officer will tell you that your license will be suspended for a year. What if I refuse to provide a breath, blood or urine sample but later change my mind? If at first you refuse to give a sample but later change your mind, you must do it before the officer sends in the warrant.

Can I request a lawyer before deciding?

You absolutely should request to speak with a lawyer. You also have the right to speak to an attorney before deciding whether to provide a sample. But you should request one right away. If the officer feels you’re stalling or the two hour window to collect a sample is quickly approaching, there are exceptions to that rule.

What else should I know about admin per se implied consent law in Arizona?

First, it’s important not to confuse the breathalyzer with the roadside portable breath test (or PBT). The PBT readings are not admissible in court and are only a tool for the officer at the scene to determine probable cause. The officer must still have probable cause to arrest you. Voluntarily submitting to the PBT only helps the officer.

Second, if you give a breath test, the results are immediate. If you’re over a .08 BAC, the officer will give you a copy of the admin per se affidavit. If you provided a blood sample, some jurisdictions will wait to see what the blood results are first. This can take several months depending on how backed up the labs are. Larger jurisdictions will go ahead and give you the admin per se right then and there.

What do I do if I refused to provide a breath sample?

You can challenge your refusal and you have a right to hearing with the Arizona Motor Vehicle Division (MVD). This is a civil hearing, not criminal, so the rules of evidence aren’t the same. It’s an informal hearing between you and the arresting officer to determine if the officer had probable cause to arrest you for DUI, if you were over a .08 and if you refused to provide a blood, breath or urine sample. On the admin per se affidavit, it tells you that you have 15 days to request a hearing. If you don’t send a timely request, your license will be automatically suspended. The timelines for request a hearing a very strict so don’t forget.

Should I request a hearing and how do I challenge a suspension?

There are many reasons to request a hearing. For example, perhaps you simply need more time to get your affairs in order. Perhaps you initially refused but then told the officer you would submit before he or she faxed in a warrant. Perhaps you never refused at all. If I didn’t refuse, why was my license still suspended? If you had a BAC over .08, the MVD can still suspend your license for 90 days. You can challenge this as well at a hearing. But to be clear, the 1 year suspension is only for those who refuse to provide a sample, while the 90 day suspension are for those who had a BAC reading of over .08.

If you were arrested for DUI in Arizona, call an attorney right away. The time limits for a challenge to the MVD ruling are stringent. There are many reasons to challenge a suspension that can’t be listed in a quick overview. An experienced attorney will go over all of your options and help you pick the best one.

You want the best results for your case and the experience of a qualified attorney will help. At The Heath Law Firm we dedicate our practice to the subtleties and nuances of DUI law. Give us a call today and get help with your DUI.

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