Throughout the United States, many states rely on "implied consent" laws to curb drunk driving and enforce DUI laws. Although these laws vary from one state to the next, the general premise remains the same: by virtue of driving on a state's roads, drivers consent to submit to chemical testing.
Arizona is no different. Under A.R.S. § 28-1321, the Arizona Implied Consent statute, "[a] person who operates a motor vehicle in the state gives consent...to a test…of the person's blood, breath, urine or other bodily substance…" However, this statute does not give law enforcement officers free reign to draw blood at will.
Instead, as the Arizona Court of Appeals recently clarified in Carillo v. Houser, a law enforcement officer may only take blood from someone suspected of DUI when that person "expressly agrees" to the blood draw or the officer has a warrant. This express consent must be "affirmatively and unequivocally manifested by words or conduct, and may not be inferred by a suspect's mere failure to communicate clear objections to the test."
In the absence of express agreement from the driver, the officer may only draw blood from a suspect if he or she has a warrant. As a practical matter though, if the officer has probable cause to believe that a driver is under the influence of alcohol, he or she can obtain a warrant over the telephone in minutes. Accordingly, many people will consent to the testing, despite this clarification to the Arizona implied consent laws.
It is important to note that this ruling does not alter the consequences of a refusal to submit to a blood test. Under the implied consent law, drivers who do not voluntarily submit to the testing will lose their driving privileges for one year. Given that police officers can readily obtain warrants, many drivers will still consent to the testing simply to avoid this consequence. However, drivers should carefully consider their options before deciding on a course of action.
For more information about the implied consent laws, or to discuss particular concerns related to DUI, contact an experienced criminal defense attorney.
