Arizona DUI: Refusal to Take a Blood, Breath or Urine Test

In Arizona, if you get pulled over for a DUI and the officer asks you to take a blood, breath, or urine test, do you have to take one? What happens if you refuse?

Implied Consent

Arizona law requires you to take a blood, breath, or urine test if you are arrested for a DUI. Arizona’s “implied consent” law says that if you are lawfully arrested by an officer who has reasonable grounds to believe that you have been driving under the influence of alcohol or drugs, then you consent to taking a chemical test of your blood, breath, or urine for the purpose of determining your blood alcohol content (BAC). The test must be given within two hours of when you were driving. The officer who arrests you gets to choose which test you take.

You could be required to submit to the tests even if you are not driving. If you have actual, physical control of the vehicle while under the influence, then that can be enough for an officer to arrest you and require that you take the test. Generally, actual, physical control means that the car is on and you could make it move. For example, a driver realizes he is drunk so he pulls over to sleep it off, but he leaves the motor running to keep the air conditioning or heater on. An officer finds the parked car, wakes the driver, and on smelling alcohol on the driver’s breath arrests him for a DUI. (To read more about this see State v. Love, 182 Ariz 324 (1995). You may need to go to an Arizona law library to find this case.)

If you are arrested and you refuse the test, then the officer will require that you surrender your license and will file a report that will result in the state suspending your license or permit for at least twelve months (for a first offense). You may change your mind and face no consequence of your present refusal, but you need to tell the officer that you will now take the test. Failure to expressly agree to or complete the test will be treated as a refusal.

You can read Arizona’s implied consent law in Arizona Revised Statute 28-1321(A).

Refusing to Take the Test

1st Offense

2nd offense

3rd Offense

Refusal to take test

1 year suspension of license

2 year suspension of license

2 year suspension of license

Once you refuse to take the test, the officer who arrested you will demand that you submit your license. You will, however, get a temporary driving permit that is good for fifteen days. Afterwards, the officer must make a sworn report explaining that he or she had reasonable grounds to believe that you were driving under the influence, that you refused to take the test, and that he or she warned you of the consequences of refusal.

If this is your first refusal, the suspension will last a year. When you have completed ninety, consecutive days of your suspension, you can request a special, ignition-interlock license that – if approved – you would keep for the remainder of the suspension. For second or subsequent refusals within seven years, the suspension will last two years. For more on the ignition-interlock license see, Arizona Revised Statute 28-1401.

When the state suspends your license, it must notify you about the suspension and include forms that you can use to challenge it. To do this, you must request a hearing in writing or online within fifteen days of when the notice was sent. At the hearing, you can discuss whether the arresting officer had reasonable grounds to believe you were driving under the influence, the circumstances of the arrest, your refusal to take the test, and whether you knew the consequences of a refusal. After the hearing, the suspension of your license will either be confirmed or rescinded.

In most situations, if you refuse to take a mandatory blood, breath, or urine test, you cannot be forced to do so. However, the state may administer the test if you are unconscious or dead. You can read more about this and the penalties for refusal in the Arizona Revised Statue 28-1321.

Should You Refuse to Take a Mandatory DUI Test in Arizona?

It usually does not help you to refuse to take a blood, breath, or urine test when you are arrested for a DUI. In Arizona, the consequences of refusal are milder than those for a DUI conviction, which include jail time and fines. Refusing the test, however, does not guarantee that you won’t be convicted. You can still be found guilty of a DUI even if your refusal means that the state does not have proof that your BAC was over .08%, the legal limit for those over 21. In fact, the prosecution can use your refusal against you by arguing that you refused the test because you knew that you were intoxicated and guilty of DUI.

(Check out our blood alcohol content chart for an estimate of how many drinks it takes to get to the legal limit.)

Get Help With Your DUI

If you have been arrested on a DUI charge in Arizona or any other state, get help from an experienced DUI attorney. Unlike other traffic related charges, which might be worth fighting without a lawyer, conviction for a DUI has serious consequences – especially if the incident involved injury to people or property, or if it’s your second or subsequent DUI. To avoid or reduce the consequences, your best bet is to find an attorney who knowledgeable about your state’s laws and about how the system works in your county’s court.

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