What is Implied Consent

The law states that any person who operates a motor vehicle within the state of Arizona and is arrested for an offense related to drinking and driving is presumed to have given implied consent to a test of his/her breath, blood, urine or other bodily substance, for the purpose of determining alcohol concentration.

The arresting officer has the authority to decide what type of test the driver must complete and the authority to require more than one type of test.

The law also states that a person who is dead, unconscious or otherwise incapacitated is deemed not to have withdrawn consent.

The officer must inform the driver that if the chemical test results indicate an alcohol concentration of .08 or more for a non-commercial driver’s license, then the individual’s driving privileges will be suspended for a period of ninety (90) days.

Also, the arresting officer must inform the driver that a refusal to submit to chemical testing shall result in a license suspension for 12 months.

Almost any failure to expressly agree to the test(s) or successfully complete them will be deemed a refusal and result in a 12-month suspension of driving privileges.

Do I Have to Take a Field Sobriety Test

The implied consent rules should not be confused with your right to voluntarily submit to or refuse to take a roadside field sobriety test before an arrest is made.

Field sobriety tests are completely voluntarily.

If you submit to being tested, you might be arrested anyway, and the evidence obtained by the arresting officer during the test can be submitted as evidence against you.

Penalty for Refusing to Submit to Alcohol Testing

If a driver refuses to submit to or successfully complete the breath or blood test(s) as requested by the officer, the law permits the officer to obtain a sample of your blood based upon the following legal exceptions:

1. The officer can attempt to contact a local magistrate in order to obtain a search warrant. If a search warrant is obtained, the officers may obtain a blood sample and may use force if necessary to obtain that sample; or
2. If the individual is admitted to a hospital and hospital staff obtains blood or urine samples for medical purposes, the investigating officer may obtain a sample for law enforcement testing purposes.

Refusing to submit to alcohol testing or to successfully complete a test for alcohol content will result in a 12-month suspension of driving privileges, regardless of the outcome of the criminal trial in most cases.

Suspension of Driving Privileges May Happen Immediately

After chemical testing, if a person is determined to have a BAC (breath or blood alcohol content) of .08 or more, the officer will issue an Admin Per Se suspension on the day of the arrest.

The ninety (90) day Admin Per Se suspension will commence 15 days from the date it was issued and the driver is then prohibited from operating a motor vehicle for ninety (90) days.

If an individual refuses to submit to chemical testing or fails to successfully complete chemical testing, the officer will issue an Implied Consent suspension of driving privileges on the day of arrest.

The one (1) year Implied Consent suspension will commence 15 days from the date it was issued and the driver is prohibited from operating a motor vehicle for one (1) year.

The loss of driving privileges can occur before the driver has been convicted. In fact, it usually begins well in advance of the trial.

Is Staying a Suspension Possible

Staying a suspension is possible if, within 15 days of the date of issuance, the driver requests either a summary review or a hearing with an administrative law judge of the Motor Vehicle Department.

If summary review is requested, the driver submits a written argument as to why his/her driving privileges should not be suspended due to clerical errors on the paperwork submitted by the arresting officer.

Driving privileges shall remain in effect for at least 20 days from the date of the request.

The documents will be reviewed without a hearing and the driver will be notified of the Motor Vehicle Department’s decision.

If a hearing is requested, the suspension is stayed and the driver is considered to have a valid license at least until the day of the hearing.

A hearing date can range from three weeks to three months from the time the hearing was requested.

The hearing will usually take place in the county in which the offense occurred, unless the officer requests otherwise.

What is a Motor Vehicle Department Hearing

A Motor Vehicle Department hearing usually occur before any criminal trial.

The rules of evidence that normally apply at a criminal trial do not apply at these hearings.

This is an administrative hearing and the driver has the right to be represented by legal counsel during the proceeding.

In a non-refusal case where the driver completed the chemical test(s), the state must prove by a preponderance of the evidence:

• A law enforcement officer had reasonable grounds to believe that you had violated A.R.S. §28-1381, §28-1382, §28-1383 or §4-244(33);
• Whether you were placed under arrest;
• Whether a test indicated an alcohol concentration of 0.08 or more (0.04 or more in a commercial vehicle) at the time the test as administered; and
• Whether the testing method was valid and reliable and whether the results were accurately evaluated.
• Whether or not the officer had reasonable grounds to believe that the person charged was driving or was in actual physical control of a motor vehicle while under the influence of intoxicating liquor or drugs;
• That the person was placed under arrest;
• That the person refused to submit to the test; and
• That the person was informed of the consequences of refusal.

What can Happen at an MVD Hearing

If the officer fails to appear at the hearing or fails to meet the burden of proof at the hearing, the proposed suspension will be voided and the driver’s privileges will be returned.

However, this does not mean his/her driving privileges are immune from suspension.

A conviction in the criminal portion of the drinking and driving charge will result in a suspension for the ninety (90) day period that would have been ordered had the state met its burden at the MVD hearing.

The major difference is that a suspension that results from a criminal conviction will ultimately require the driver to obtain SR-22 insurance, which is usually more expensive, in order to have his/her driving privilege reinstated while a suspension which stems from a MVD hearing will not create this situation.

If the officer does meet its burden of proof at the hearing, the driver’s privileges will be suspended.

However, a driver maybe eligible for a 60-day restricted permit, following an initial 30-day suspension.

In addition, the driver has the right to petition Superior Court for a review if the driver believes that the officer has not met the burden of proof.

What is a Petition for Review

In a non-refusal case, the driver (or driver’s legal counsel) must file a motion for rehearing with the Motor Vehicle Department before a petition for review may be filed with Superior Court.
In a refusal case, a motion for rehearing is not required before a petition for review is filed in Superior Court.

A petition for review by Superior Court must be filed within 30 days of the Motor Vehicle Department’s final order of suspension and will be heard on an expedited basis.

Explanation of a Period of Suspension

In a non-refusal case, if the test results indicate an alcohol concentration of .08 or more for a non-commercial driver’s license, then the individual’s period of suspension for driving is 90 days.

However, so long as the driver did not cause serious physical injury to another person, has not been convicted of a prior drinking and driving charge in the past 84 months and has not had his/her privilege to drive suspended for a prior drinking and driving charge, he/she is entitled to a restricted driver’s license after an initial thirty (30) day suspension.

For the remaining sixty (60) days the individual may drive to and from work, school or court hearings.

In a refusal case, driving privileges are revoked for twelve (12) months. However, current Arizona law allows for a restricted license in cases where the driver does not have a prior refusal or did not cause serious physical injury to another person.

He/she would have to endure an initial 90-day period of suspension.

He/she would also need to obtain an ignition interlock device and obtain SR-22 insurance.

The restricted license will allow the individual to drive the remaining nine months of the 12-month suspension.

Is Reinstating Driving Privileges Possible

Driving privileges are not automatically reinstated following a period of suspension.

The driver must complete some paperwork and tender a fee to have his/her privileges reinstated, otherwise his/her privileges to drive are still considered to be suspended.

This fact is sometimes overlooked by drivers and may result in stiff penalties should the driver commit another driving offense while his/her license is still considered suspended.

Do not forget to talk to your attorney regarding reinstating driving privileges during your consultation.

Repeat Offenders and Special Circumstances

In addition to a suspension of driving privileges, some drivers suffer a subsequent revocation as well.

The law states that a person convicted of a second drinking and driving charge within 84 months of the first one shall have his/her driving privilege revoked for a period of not more than one year.

A person convicted of aggravated drinking and driving will suffer a three-year revocation period.

Reinstatement of the privileges following a revocation is much more difficult than following a suspension.

It involves an investigation of the driver’s character, habits and driving abilities as well as a written evaluation from a physician, psychologist or certified substance abuse counselor stating that the person is able to safely operate a motor vehicle.

If you are not sure if you fall under the repeat offenders category, please discuss your past history in detail with your attorney. This will only assist in making the best recommendations for your specific case.