Blog Post

Should You Submit To A Breathalyzer Test In Arizona?

Anyone who has been pulled over on suspicion of driving under the influence (DUI) of drugs or alcohol in the state of Arizona knows that is a stressful and often frightening situation. Regardless of whether someone has had one beer or several drinks, it is natural to think about the possible consequences of their actions. A blood alcohol content (BAC) level of more than .08 percent in Arizona can result in fines, jail time, driver’s license suspension, and more. The concern is that no one knows at what point their BAC will reach this level. If pulled over for suspicion of driving under the influence of drugs or alcohol, should you submit to a breathalyzer test in Arizona? Those with questions about these and other sobriety tests should feel free to reach out to Chuck Franklin Law at 480-545-0700 to learn more about their legal rights and options.

Only “IF” Under Arrest

How Do Breathalyzer Tests Work?

Law enforcement officers keep portable breath test (PBT) devices in their cruisers to determine Probable Cause for a DUI/DWI arrest. These small, portable devices test the air in a person’s lungs, contrary to popular belief that they test alcohol level in the blood.

A small disposable tube is attached to the device, which is hollow and allows air (breath) to flow through. The person being tested blows through the tube until the point they are almost out of air; this takes only a few seconds. At this point, the “Set” button is depressed by the police officer; the device captures the sample and tests it, then provides a reading on the device’s digital screen. It is important to note that breathalyzer tests are not always accurate for several reasons, including:

• Certain medications or health conditions
• Residual alcohol in the mouth
• Equipment that is improperly calibrated or contaminated
• Erratic blood alcohol levels

In some situations, the factors above may result in a false positive breath test. Police also conduct breath tests using an Intoxilyzer machine that is typically located at the police station. While these tests are more accurate, the results may be skewed if the equipment is not properly maintained or calibrated or administrated by a person who is experienced with and knowledgeable about these types of tests.

Submitting to A Breathalyzer Test Is Not Mandatory (Sort of)

Many motorists are uncertain about whether they must submit to a breathalyzer test if under arrest in Arizona. While someone can refuse to take the test, there are serious consequences to consider. Motorists give “implied consent” to these tests when they get their driver’s licenses. Arizona state’s Implied Consent Law states that those who do not consent to a breathalyzer test will have their driver’s license suspended for one year.

If a motorist has refused this test previously within seven years, their license will be suspended for two years. Motorists can refuse other field sobriety tests (FST’s) including the one-leg stand, walk-and-turn, and horizontal gaze nystagmus, but should consent to chemical tests including blood, urine, and breathalyzer tests. Note: Refusing FST’s may result in an adverse jury instruction.

What Happens Following Driver’s License Suspension?

Driver’s license suspension occurs immediately when someone refuses a breathalyzer test. What happens next:

• A temporary driving permit is issued
• After being issued, the temporary permit expires in 15 days
• Prior to expiration of the temporary permit, the motorist may contact the Arizona Motor Vehicle Department to request a hearing
• If no hearing is requested, the driver’s license is suspended automatically

It is always recommended that motorists give consent to submit to a breathalyzer test, or blood draw, or testing of other bodily tests if under arrest in Arizona. Chuck Franklin Law can provide further guidance on this and other issues concerning DUI.

Potential Consequences of Refusing a Breathalyzer Test

Motorists who refuse to submit to a breathalyzer test, after arrest, in Arizona may face consequences in addition to driver’s license suspension. Under the state’s Implied Consent Law A.R.S. 28-1321 the following may occur following refusal of a breath test:

• Law enforcement officer may get a warrant to conduct a chemical test or Bloodraw
• Police officer may make an arrest without a breath test when probable cause of driving under the influence of alcohol or drugs exists
• Refusal of a breathalyzer test may be admitted at trial as evidence; jurors often consider refusal of these tests as indication of guilt (Jury instruction)

While you have every right to refuse a breathalyzer test, the consequences of doing so may be greater than those of giving consent, depending on the facts and circumstances.

Defenses For Breath Test Results

Regardless of whether a motorist consented or refused a breathalyzer test in Arizona or results were obtained after police obtained a warrant, there are several potential defenses that could prove effective depending on the circumstances of the case. These include:

• 4th Amendment rights were violated
• Errors transpired in the administration of the breathalyzer test, or police instruction
• Contamination of breath tests
• Equipment used in breathalyzer test (intoxilyzer) was not properly maintained or calibrated, or functioning as it should
• DUI charges and blood alcohol content were determined upon PBT results which are not admissible in court
• Chain of custody of breath test samples
• Acid reflux, breathing patterns, diet, mouth alcohol, and other biological factors than can affect blood alcohol results
• A single test was conducted; two tests must be administered for comparison
• The two tests were administered too far apart

Securing the services of a knowledgeable and experienced DUI/DWI defense lawyer is the most effective way to dispute the results of a breath test. A DUI/DWI conviction will result in serious consequences that may include jail time, fines, driver’s license suspension, and more depending on whether it is a first or subsequent offense.

Consider Scheduling a Consultation with Chuck Franklin

Breathalyzer tests are often faulty which may result in a false positive result. There are many things that can affect motorists and their ability to operate a vehicle properly including prescription medications, health conditions, driving at night, vision problems, or even age. When a police officer asks if you will consent to a breathalyzer test in Arizona, it may best to cooperate. Do not answer questions but be polite. You may also request to have your attorney present when taking a breath test. For those with questions or who need more information about DUI tests or other issues related to driving under the influence, we invite you contact Chuck Franklin. Contact and speak with Chuck directly at 480-545-0700.