Written by attorney James Nesci

Will I lose my license if I am arrested for DUI in Arizona?

By simply driving in the State of Arizona, you impliedly agree that if you are stopped and arrested for DUI, you will submit to chemical testing. This is why it is called the “Implied Consent Law" and the requirements vary from state-to-state, so what may be good advice in Arizona regarding the Implied Consent Law, may be bad advice in any other state.

In Arizona, if you are arrested for DUI, the police will choose either a breath, blood or urine test as a means of checking for alcohol concentration or for the presence of illegal drugs. The police may require you to submit to one or more of the tests. For example, if they choose a breath test and the result is under the prohibited limit of .080, they may choose to draw blood or collect urine to check for drugs.

If you are involved in a serious accident or a fatality, they may choose to draw several vials of blood over a long time-period in order to establish an alcohol-curve to determine if your alcohol concentration was higher or lower at the time of the accident.

If you are placed under arrest for DUI, the police will read the following three-part “admonitions" to you prior to asking for a chemical test:

“Arizona law requires you to submit to and successfully complete tests of breath, blood or other bodily substance as chosen by the law enforcement officer to determine alcohol concentration or drug content. The law enforcement officer may require you to submit to two or more tests. You are required to successfully complete each of the tests."

“If the test results are not available or indicate your alcohol concentration is 0.08 or above (0.04 or above in a commercial vehicle) or indicate any drug defined in ARS 13-3401 or its metabolite, without a valid prescription, your Arizona driving privilege will be suspended for not less than 90 consecutive days."

“If you refuse to submit or do not successfully complete the specified tests, your Arizona driving privilege will be suspended for 12 months, or for two years if there is a prior implied consent refusal, within the last 84 months, on your record. You are, therefore, required to submit to the specified test."

If you refuse to take the test, or if you take the test and the result is over the prohibited level, or if you have a prohibited drug in your system, or even if the results are not available, the officer will take your Arizona license away and issues a temporary 15-day permit. If you want a hearing on that suspension, you must request one before the permit expires. If you do request a hearing, you can continue to drive until your hearing, which may be months away. (Note that if you refuse to submit to a chemical test, the police in Arizona will also seek a search warrant from a judge and forcibly draw blood from you).

At the hearing, there will be an Administrative Law Judge who will act as both judge and prosecutor. The Administrative Law Judge will present evidence against you, just like a prosecutor. The Administrative Law Judge will rule on your objections to his or her evidence (which makes it difficult to win those objections) and the Rules of Evidence don’t apply, which makes it difficult to find grounds to make the objections in the first place. It is set up to take away your license, but what are your options?

Your first option is to let them suspend your license.

The second option is to fight it–even if you stand a substantial chance of losing.

The Administrative Law Judge will offer his or her own evidence against you. The judge will rule on your objections to his or her evidence. The Rules of Evidence don’t even apply.

The Administrative Law Judge cannot alter the order of suspension (i.e. make it longer or shorter), he or she can only enforce it or void the order. The Administrative Law Judge cannot take into account hardship. The Administrative Law Judge cannot even consider whether your vehicle was stopped legally or illegally. The scope of the hearing is limited to whether the police had reasonable grounds to believe that you were driving under the influence. Whether you were arrested for it. Whether the implied consent admonitions were read to you. Whether you successfully completed a test or not and whether you had a prohibited drug or a prohibited amount of alcohol in your system.

So, will you lose your license? Even where you win the criminal charge of DUI, you stand a substantial chance of losing your license, but you have no reason not to challenge the suspension. (The applicable Arizona Statutes are A.R.S.§§28-1321, 28-1385 and 13-3401).

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