Arizona has some of the harshest drunk driving penalties in the country. For a first time offender, you can face fines up to $2,500.00 and jail time up to six (6) months. If your blood alcohol content (BAC) is greater than 0.15%, you may face a fine of $2,500.00 and a minimum of thirty (30) days in jail. This sort of criminal conviction will show up in your background checks, meaning that it could affect your future employment opportunities and professional licenses, as well as your right to vote or carry a firearm.
Because of these potential consequences after a DUI arrest, it is only natural for a driver pulled over on suspicion of drunk driving to consider the consequences of refusing to assist police officers gather evidence that can be used against them.
Here is what you should know about refusing the breathalyzer or breath test.
Arizona’s Implied Consent Laws
Arizona’s implied consent law states that if you drive a motor vehicle in Arizona, you give your consent for police officers to administer tests to determine your BAC levels. This means that officers do not need to have a search warrant to administer a breath test if they believe you were driving while intoxicated, or if you are 21 and driving with any alcohol in your system. Refusal to take this test in Arizona can result in losing your license for a year or more.
In 2016, the Supreme Court ruled that some implied consent state laws are overreaching. Specifically, it determined that it is an unconstitutional invasion of an individual’s privacy for a state to demand that we submit to blood tests without a warrant, or risk losing our drivers’ licenses.
Justice Alito wrote:
“There must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads.”
However, the court determined that the impact of breath testing was “slight,” so that states may continue to impose implied consent laws for breathalyzer tests on drivers.
Even though Arizona law implies that drivers consent to these tests if they are pulled over for drunk driving, if you do not expressly agree to or complete the test, your actions can be constituted as a refusal.
Consequences of Refusing a Breathalyzer Test
Drivers who refuse to submit to a breathalyzer test face consequences – even if it is later determined that you are not driving under the influence of blood or alcohol.
The main consequence of refusing a breathalyzer test is that your driver’s license will be suspended immediately for twelve (12) months. The suspension period increases to two years if you have previously refused the test in the past seven (7) years.
At the scene, the officer will give you an order of suspension that is effective fifteen (15) days later. The officer must also file a certified report of refusal with the local police department.
Challenging a License Suspension
If your driving privileges are suspended as a result of refusing a breathalyzer test, you do have the option to challenge the suspension within 15 days. Until the hearing, you are still permitted to drive, even if the hearing is not scheduled until after the 15-day period has ended.
If you want to challenge the suspension, you must be proactive – if you do not request the hearing, the license suspension will be automatic.
At the hearing, the police officer must show up to testify, either in person or by phone. If the officer does not show up, the hearing officer must overturn the license suspension.
If the officer does appear, he or she must prove a number of factors for the suspension to be upheld. Specifically, the officer must show:
- They had reasonable grounds to believe the person named was driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor and/or drugs.
- That you clearly refused to take or complete the test, after being asked to take it and being informed of the consequences.
- That the officer gave the required warnings about the consequences of refusing to take the breathalyzer test – specifically, that refusal would lead to license suspension for at least 12 months.
- That the officer provided the correct paperwork, namely the order of suspension.
You should note that there is no requirement here to show that you were actually driving the vehicle while intoxicated – the officer merely must have a reasonable basis to believe that you were operating a motor vehicle or were in actual physical control of a motor vehicle while under the influence of drugs or alcohol, or, if you are under 21, were operating a vehicle with any alcohol in your system.
If the hearing officer decides that the police officer met all the statutory requirements for license suspension, you can appeal this decision to the superior court within 30 days of the date the suspension was upheld.
Myths About Refusing a Breathalyzer Test
Myth #1: If I refuse a breath test, officers cannot tell if I am impaired.
This myth is incorrect. Even if you refuse a breathalyzer test, an officer still has tools available to determine if you are impaired.
First, an officer can ask you to take three different standardized field sobriety tests:
- A Horizontal Gaze Nystagmus examination/test where an officer shines a light into your eyes. This tests for bouncing or quivering of your eyeball, and tests eye movement. Police officers are trained to interpret your eye movements and the quivering motion to determine if there is a high BAC level. The National Highway Transportation Safety Administration (NHTSA) estimates that this exam is 80% reliable in determining if someone’s BAC levels are at or above 0.10%.
- A Walk and Turn test, where you are instructed to walk nine steps forward, turn around, and walk nine steps back. This tests for balance and coordination.
- A One Leg Stand test, where you are asked to stand on one leg for a period of time. This tests for balance.
Second, the officer can also ask a judge to issue a search warrant that orders you to submit to a blood test to look for alcohol or drugs in your system. Blood tests can be more accurate than breathalyzer tests, the results of which depend on how accurately the test is calibrated.
Myth #2: I cannot be charged or convicted of a DUI without a breathalyzer or blood test.
This myth is incorrect. It is possible to be convicted of a DUI without a breathalyzer or a blood test, because of Arizona’s two definitions of driving under the influence:
- Driving under the influence of any intoxicating substance or alcohol; and
- Having a BAC of 0.08% or more.
This means that the prosecution do not have to show the results of any chemical test in order to pursue you for a DUI offense. BAC test results are one piece of evidence the state can use against you as evidence, but they are only one piece of the puzzle.
For example, the state can bring in evidence of the number of drinks you had at dinner or the bar before driving by showing credit card slips or security footage from the restaurant. The bartender or waitress can testify about your demeanor while you were at the bar, or if you stumbled out when you left. Police officers can testify about smelling alcohol on your body or breath during the traffic stop, if you were drinking from open containers in the vehicle, or if you slurred your words when you answered questions.
An experienced DUI defense attorney will challenge the state’s evidence in court in an attempt to lessen the charges against you, or have them dismissed altogether. However, it’s important to remember that refusing the breath test will not automatically preclude the possibility of being charged with a DUI.
Myth #3: I can confuse the breathalyzer test.
It is possible for a breathalyzer test to return a false positive, especially if the officer administering the exam does not calibrate the instrument correctly.
Breathalyzer tests examine the air exhaled from your lungs to determine the amount of alcohol in your system. It’s possible that the test will record higher alcohol levels, even if you haven’t had a drop to drink. For example, if you recently used mouthwash or had dental work that day, the breathalyzer test could pick up alcohol in your mouth and mistake it for a higher BAC level.
People with certain medical conditions, such as acid reflux, may burp up stomach acid, which a breath test may also register as a falsely high BAC level.
Because of the possibilities for false positives, there are many word-of-mouth ways for someone to beat a breathalyzer test if they are pulled over on suspicion of DUI. Some people may say that chugging water, or coffee, or even hastily using mouthwash before the police knock at your window may have the effect of throwing off the machine.
One strange myth is to put a penny in your mouth because the copper will neutralize the alcohol. While it’s an amusing idea, there is not much truth to these rumors.
In reality, there are no life hacks to beat a breathalyzer test. The only thing that will lower your BAC levels is time. At the end of the day, drunk driving is not worth the risk to yourself or to other people on the road. Rather than worry about the consequences of breathalyzer tests or potential jail time if you are convicted of a DUI, it is far safer to designate a driver or call an Uber to take you home.
This article is for informational purposes only and does not provide legal advice. If you were pulled over for a DUI and refused a breathalyzer test in Arizona, contact our experienced DUI attorneys to understand your options.