Many Arizonans are not aware of a serious trap in the DUI laws. Most people assume that the police must obtain a search warrant to seize a person's belongings if the person does not consent to a search. After all, isn't that what we all learned in elementary school about the American Revolution? And since no possession is more important to a person than that person's body, one would naturally assume that the police have to get a search warrant to get blood from a DUI suspect. Right?
That answer is complicated. Under the implied consent laws of Arizona, every Arizona driver has already "consented" to the police taking his or her blood upon probable cause for believing the driver has committed a DUI in Arizona. That means once you sign for your driver's license at MVD, you have given the police permission to take your blood, whether you say so or not when actually arrested, when the police arrest you for DUI. So what happens if you are arrested for DUI but don't let the police take your blood voluntarily and you tell them to get a warrant?
That is exactly what the police will do: they will get a warrant. That is a process that has gotten a whole lot easier lately.
Phoenix police officers can now get a signed search warrant for a blood sample from a suspected drunken driver within minutes from their patrol car.
Officers don't have to drive to a station, type or write up a warrant, fax it to the court and then wait up to an hour or more for a faxed approval from a judge....
An officer stopping a suspected impaired driver must obtain a search warrant if the driver refuses to provide a blood sample.
(see "Search-warrant process in DUIs faster for Phoenix police" by Cecilia Chan")
So no big deal right? A driver doesn't let the police take his or her blood and the police get a warrant through a streamlined process. What could be more American than a citizen enforcing his Constitutional right to be free from illegal searches and seizures? You can get my stuff but only if you get a warrant. That, to most citizens, is as American as apple pie.
Unfortunately, however, that is not the law. If a DUI suspect does not consent to a blood draw upon probable cause for believing the driver has committed a DUI and the police get a warrant, the consequence is you will lose your license not for the standard 90 days (standard for first time misdemeanor DUIs), but for a whole year. The 90 day suspension is very limited. The first 30 days are a complete ban on driving, but the final two months include the right to drive for work, school, health, and legal reasons. This is what is called an admin per se suspension.
The implied consent suspension (refusal) is a complete ban on driving for 90 days, but then a driver is eligible for a restricted license for the remaining 9 months if he or she installs an interlock device in their car. That is a change in the law from a few years ago when the one year ban was a total ban on driving for the entire year.
If someone is arrested for a DUI and the police got a warrant for the driver's blood, does that end the matter? Is there a way to challenge the police allegation the driver refused and deserves a one year suspension? Yes there is. If a driver, or his attorney, requests a hearing with MVD within 15 days of the date of stop and arrest, the MVD will have an administrative law judge determine if the police was correct the driver refused. If the driver does not request a hearing however, the one year ban will start automatically 15 days after the arrest date.
So what should someone do if stopped by the police for a DUI? How is an average citizen supposed to know what tests he has to take, what he has to do, and what he has a right to refuse to do? Simple, if you are stopped for a DUI, always ask to talk to a lawyer. The police must give every DUI suspect a "reasonable opportunity to consult with a lawyer" so long as that does not interfere with the investigation. What that usually means is 20 minutes of privacy with a cell phone and phone book.
While most police officers get this process right, you would be surprised how many don't and fudge the right to counsel. Fortunately for the public, Arizona courts take the right to counsel very seriously and hold police officers to strict compliance. The benefit of speaking with a lawyer is he will tell you what you must do and what not do. Usually that means don't answer any questions, don't do the field sobriety tests, don't do the portable breath test, be polite, and if you are arrested and the officer reads you the admin per se form: comply with it. Most importantly, once you are released go to a hospital to have them draw your own blood specimen to challenge the police blood draw.
While the police say they draw two tubes of blood for you and you can get an independent test done yourself, there are a couple of problems with that: first, if the police made a mistake with the blood draw itself, ie, tubes not preserved, mis-labelled, etc..., testing their tubes won't catch that. Second, if you request your B specimen for an independent test, but the results are not different from the "official" government result, the prosecutor can mention you requested a independent test during trial. But if you got your own specimen without asking the police, they will have no way of knowing what the results are.
Again, at the risk of being tedious, the only thing to remember is call a lawyer if you have been stopped for a DUI, the sooner the better.