Refusing Breathalyzer Tests
Dedicated Phoenix DUI lawyer explains your rights as they pertain to refusing breathalyzer tests in Arizona.
As a police officer, I was often asked the question, do I have the right to refuse to take the breathalyzer test? To my surprise, I’m even asked that more so as an attorney, but oftentimes, it’s after the fact, after someone has refused to take the breathalyzer test or after they took it and wondered if the evidence obtained from the breathalyzer is admissible in their DUI trial. What you must understand is that the breathalyzer test, whether it’s blood, breath, or urine or any other type of evasion into the body, under the law, is considered a search. It is a search of your person. Your breath would be the evidence, blowing into the machine. Your blood would be the evidence, drawing it out with a needle. They would either need a warrant from a judge to get it, or they would need consent from you to get it.
You can always refuse consent when consent is the method to get it. Consent is completely up to you. Does that mean that the police officer or whomever will not go get a warrant? No, it doesn’t mean that necessarily at all. Sometimes the police officers will go get a warrant, especially if they have reasonable suspicion that you are driving under the influence. Most jurisdictions have it to where, if you refuse to take the breathalyzer test, your license is automatically suspended. While they may not get the breath or blood in time to establish that you were over the legal limit, you would still waive your rights to a driver’s license, because again, that’s a DMV process. You have a license to drive, not a right to drive, in most jurisdictions in the United States. Absolutely, you could refuse to take a breathalyzer. It’s not necessarily wise all the time to refuse to take that, because again, the officer is left with the option to go get a warrant.
If they suspect that a crime is afoot, and the evidence, the blood, or breath that’s in your body is evidence to that crime, then they could get a warrant from a neutral magistrate that would sign off on it. People refusing breathalyzer tests happens every day in the field. People refuse to take those tests, so again, I advise clients all the time, yes, you can refuse. Is it wise to refuse all the time? No. If you refuse, is there another way for the officers to get the blood, breath, or urine? Absolutely. There is a warrant they can get. They can get a warrant from a judge, but again, if this ever happens to you, you need to let your attorney know. It’ll be listed in the police report, but you let the attorney know why you refused so they can make these arguments in court. If there was a warrant, let the attorney know so the attorney can review the warrant and make sure that the police officer had sufficient basis for that warrant while they were conducting that search of your person.
Were you pulled over for DUI in Arizona and have questions about refusing breathalyzer tests? Contact our dedicated Phoenix DUI lawyers for a free confidential consultation. Let us fight to protect your rights.
Out of Town Legal Resources
The other day someone called our office looking for help with a DWI in New York. We don’t practice in New York but we found this criminal defense firm in Buffalo, NY that has experience with DWI defenses and offers a lot of great online resources. If you or a loved one is charged with DWI in New York check out the New York DWI Guide.