Interviewer: Can you be charged if you resist having your blood drawn, either with or without a warrant?
Mike: In Arizona, an officer will read you regulations from the motor vehicle division when he asks to take blood from you. One is the admin per se suspension. The other one is the implied consent suspension.
According to the admin per se suspension, people agree when they get their license in Arizona that if an officer has reasonable belief they’re under the influence of alcohol, and over .08, he has the right to suspend them for 90 days.
The implied consent suspension says your consent is implied the minute you get your license. You sign it as a contract when you get your privilege to drive. If you decide to refuse a blood draw, you’re violating that contract. The penalty is one year suspension of your driver’s license.
Interviewer: Can you successfully defend someone against license suspension even if they refused to have their blood drawn?
Mike: Refusing a blood draw doesn’t hurt your criminal case. Refusal affects your driving privileges, which is separate from the criminal case itself. The Arizona Department of Transportation (ADOT) motor vehicle division deals with your privilege to drive.
That can still be fought, though. We routinely fight refusals with the MVD hearing office. As long as we request a hearing, the person is still able to drive. If the officer shows up to the hearing, we cross examine him to prove our person actually did not refuse.
If we’re able to prove the person did not refuse, then the suspension will be voided. If the officer is able to show the person did refuse, then the administrative law judge has the right to uphold the suspension. That’s when suspension starts.
Interviewer: Do you see many cases where police say someone refused a breath test but the person denies refusing the test? Can you defend someone in this situation?
Mike: The Intoxilyzer 8000 is the machine that does the breath test. You have to blow into it at a certain strength. Supposedly a noise will go off that means you are blowing the way they want you to. That will register the test.
Some people just don’t have the lung capacity. They’re unable to blow hard; and the sound never goes off. Even though the person is voluntarily blowing, police officers will sometimes say they’re refusing. That’s not really a refusal. We challenge those cases all the time.