Consequence Of Refusing A Blood Draw


›››The following content is an excerpt from a live interview with Richard Jacobs founder of my DUI Attorney dot org. The interview has been transcribed and contains information for educational purposes only. Please call Michael Munoz to get legal advice for your particular situation

 

Interviewer : Is there a charge if you resist having your blood drawn, either with or without a warrant?

Mike: In Arizona, if an officer asks to take blood from you, they will usually read you some regulations from the motor vehicle division. One of the admin per se suspension, and the other one is the implied consent suspension. Essentially what that is, when people get a license in Arizona, they agree ahead of time, that if an officer has reasonable belief that they’re under the influence of alcohol and over an .08, they’re agreeing ahead of time when they get their license, that an officer has the right to suspend them for 90 days. That’s called the admin per se suspension. The implied consent suspension says, your consent is implied from the minute you get your license. You sign it as a contract when you first get your privilege to drive. If you decide to refuse a blood draw, you’re violating that contract in terms of the implied consent. So what happens is the penalty is one year suspension on your driver’s license.

Interviewer : So if someone does refuse Blood Draws, are these still defensible cases? Or is it pretty much a sure thing that your license is gone for awhile?

Mike: What we’re referring to is not really part of the criminal process. This is dealing with ADOT, the Arizona Department of Transportation, and within ADOT, the motor vehicle division. So this is really dealing with your privilege to drive. So refusing a blood draw doesn’t necessarily hurt your criminal case. The refusing the blood draw is just effecting your driving privileges. That is separate from the criminal case itself. That can still be fought, though. We routinely fight refusals with the MVD hearing office. What has to happen is we request a hearing, and then as long as we request a hearing, the person is still able to drive. Then on the hearing date, if the officer shows up to the hearing, we’ll have a chance to question the officer and cross examine them and try to prove that our person actually did not refuse. If we’re able to prove that the person did not refuse, then the suspension will get voided. If the officer is able to show that the person did refuse, then the administrative law judge has the right to uphold the suspension, and that’s when the suspension will start.

Interviewer : How long does it take to get the blood test results back on a case?

Mike: It can sometimes take 30 days. I thinks it’s probably a good average around 45 days from when the blood was drawn. In Arizona, many DUI arrests happen every single week, and most police agencies are moving from breath to blood draws. So what’s happening is the crime labs for the cities or the counties, the area that they send the blood to, these crime labs are getting very, very busy. So the backlog for getting the blood tested, it can get long. I will say, you’ll get a blood result quicker on an alcohol blood test faster than you will on a drug test. When they do a drug screen on the blood tests, they take a long time for them to come back.

Interviewer : This is a little bit on the side, but on the breath test at the station, have you seen cases where people say, “I didn’t refuse. I blew into it 5, 10 times,” or “I tried. The police still said I refused.” Do you have those cases and what do people say? Can they be defended?

Mike: Yes, that’s something we see a lot, where the intoxilyzer 8000, essentially the machine that does the breath test, you have to blow into it, and if you blow into it at a certain strength, then supposedly a noise will go off that says you are blowing the way they want you to. That will register essentially the test that they’re looking for. Some people just don’t have the lung capacity and they’re not able to blow hard, so that sound never goes off. When that happens, even though the person is voluntarily blowing, sometimes the police officers will say that they’re refusing. That’s really not a refusal. So we challenge those cases all the time.

By Michael Munoz

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