Arizona’s Implied Consent and Admin Per Se Laws

Interviewer: What is the implied consent law as it implies to drivers licenses in Arizona? What happens to your driver’s license when you are arrested for DUI?

Michael: When a person is arrested for DUI in Arizona, it triggers certain MVD consequences, which is the motor vehicle division. A lot of people don’t know this but when they first get their driver’s license they signed a contract. One of the things they did is they agreed to certain penalties ahead of time in the event they were ever arrested for a DUI.

There are two things that are triggered when you get arrested for DUI. The first one is the Admin Per Se law. The Admin Per Se law can trigger what’s called the Admin Per Se suspension. The second one is the implied consent law and that has a separate suspension. They are both two separate things.

A DUI in Arizona Entails Criminal and Civil Charges

What people need to know is that when you get a DUI in Arizona the MVD consequences are completely separate from the criminal consequences they’re dealing with in the actual criminal courts. What that means is, regardless of what happens in your court the MVD is going to go forward with the penalties they think appropriate.

Admin Per Se Suspension

Specifically, the Admin Per Se suspension comes into effect when a person agrees to take a blood or breath test during a DUI investigation. Under the Admin Per Se law a police officer has a right to suspend your license for 90 days under that law if the police officer has a reasonable belief that you’re driving your vehicle under the influence of alcohol and you have a blood alcohol level over a .08. If an officer has that belief, he signs an affidavit and he sends it to the motor vehicle division. From there, you have 15 days to request a hearing. If a person does not request a hearing within 15 days then their license will be suspended automatically by default. That suspension is for 90 days.

Shortening the Admin Per Se Suspension Through an Alcohol Screening

That 90-day suspension can be shortened if the person does what’s called an alcohol screening. If they do their screening before the 90 days is up, they will have the opportunity to get a home, work, school permit where they can drive to home, work, and school during the 90-day suspension. A person is not eligible for that home, work, and school permit until they serve the first 30 days of the suspension. This means they cannot drive for the first 30 days of when the suspension starts.

Requesting a Hearing with the Motor Vehicle Division (MVD)

If a person does request a hearing with the MVD then that will delay the start of the suspension. That will give the person the opportunity to fight the suspension through the MVD hearing office.

Implied Consent Law: Refusing the Chemical Tests

Now the other arm of the MVD consequences is the implied consent law. That is separate from the Admin Per Se whereas it applies to people who have refused to do blood or breath test during a DUI investigation. When a person refuses to do a blood or breath during a DUI investigation when asked by a police after an arrest, they will then serve the same affidavit but the difference is they will say that you violated the implied consent rule under the MVD statutes.

Requesting a MVD to Challenge the Implied Consent Suspension

The implied consent means that when you first received your license, you consented ahead of time and it was implied. When you violate that, then the officer will send that affidavit to the MVD. Again, you have 15 days to request a hearing and if you don’t request a hearing within the 15 days then the suspension will start by default.

Here, under implied consent, the suspension is for one year meaning you will not be able to drive your vehicle for an entire year. This can be very damaging to a person because they can lose their job if they don’t have the ability to drive. In these cases, the 15 days is very important. A person should always request a hearing when they’re being alleged to violate implied consent. Then at a hearing their attorney can go and fight for them to try to beat the implied consent ruling and try to have it voided so that the person does not lose their driver’s license.

Interviewer: We’ll talk about implied consent and losing your license for a whole year and this is because you’re refusing a chemical test, which is blood, breath, or urine. Is that correct?

Michael: Yes, it is.

Interviewer: Where do these refusals happen? Do they happen on the roadside or only at police stations or hospitals?

Michael: Well, the refusal could happen anywhere, but commonly what happens is police officers takes you to either a DUI taskforce van, police station, or a hospital to either do a blood draw or try to get them to blow into a breath device. At this point, they will ask you to do it and if a person refuses then the officer is supposed to read you the refusal admonition that explains the consequences of a possible refusal. If a person still refuses at that point then they will consider it a refusal and then most likely the officer will apply and fill out the necessary paper work to try to get a search warrant. If a judge signs the search warrant, then he’s going to send it back, and then the officer legally has the right to forcibly draw blood.

Are There Consequences for Refusing the Preliminary Breath Tests?

Interviewer: For instance, does Arizona have preliminary breath tests and does refusing one of those violate the implied consent law?

Michael: No. Many police agencies do use preliminary breath tests, also known as PBTs. Those are usually performed roadside. In Arizona, a person has the ability to refuse those tests. There’s nothing wrong with refusing a portable breath test. Refusing a portable breath test in Arizona does not violate the implied consent rules with the Arizona MVD. The implied consent suspension only comes from a refusal of a blood test or a breath test that is performed by the Intoxilyzer 8000.

Can You Apply for a Restricted or Hardship License to Restore Some Driving Privileges?

Interviewer: The law says that you’re supposed to lose your driver’s license for an entire year. During that year, is there any way to get either a restricted or a temporary license or are you doomed to have no license for a whole year?

Michael: It is possible on your first offense, if it’s your first offense DUI and it’s a refusal case. If you do lose your license for a year it is possible to apply to the motor vehicle division for what’s called a special ignition interlock restricted driver’s license, also known as SIIRDL. What happens in a SIIRDL is a person has to be suspended for a certain amount of time and then after that time they are allowed to apply for it. If they get it, they are allowed to start driving to home, work, and school. Some of the requirements to get a SIIRDL include having to install an interlock device on their vehicle and they have to get high-risk insurance also known as SR22. They also have to complete substance abuse screening.

If they do all of those things and they’ve served the initial portion of the suspension then the MVD may give them a SIIRDL and they can drive during their suspension.

You Will Not Get Credit for Installing an Ignition Interlock Device Before a Conviction

The one thing people should know though is if they do get convicted for a DUI, they will not get credit for the time they have the interlock device on during the suspension period. They’ll have the interlock device on for the suspension period and then if they get convicted they’ll still have to do the whole entire amount of time as a result of the DUI.

How Can You Qualify for the Restricted Driving Permit?

Interviewer: How about restricted licenses and home, school, work permits? Under what circumstances can you qualify to get one of those two things?

Michael: On a first-time DUI in Arizona, and a person agreed to undergo all of the blood or the breath tests, that’ll fall under the Administrative Per Se suspension, the 90-day suspension. To be able to drive, to get a home, work, and school permit after the first 30 days; someone can be eligible if they undergo their alcohol screening.

If they do their alcohol screening with a certified provider with the state of Arizona, that provider will send proof of the completion to the Arizona MVD. Then after the first 30 days, on day 31, the person can go directly to MVD and apply to get their home, work, and school restrictive driver’s license. If approved, they are allowed to drive for the remaining 60 days of the 90-day suspension to home, work, and school.

Interviewer: In terms of chemical tests, such as the blood, breath, urine, we talked about if you refuse these tests that you’d get certain penalties. Do you often see cases where people are accused of having refused a chemical test and they tell you I did not refuse it for this and that reason? Can you go into why that happens?

By Michael Munoz

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