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“Implied Consent” May Not Mean What You Think It Means

By: Alex Lindvall

Under Arizona law, a driver gives his “implied consent” to submit to “blood, breath, [or] urine” tests for “the purpose of determining alcohol concentration or drug content” once she is arrested on suspicion of driving under the influence (DUI) (see A.R.S. 28-1321(A)). If an arrestee refuses to submit to one of these tests at an officer’s request, their driver’s license “will be suspended or denied for twelve months” (see A.R.S. 28-1321(B)).

The Fourth Amendment, on the other hand, prohibits the government from conducting “unreasonable searches and seizures.” This Amendment usually requires officers to obtain a warrant from an impartial magistrate before they may search any “persons, houses, papers, or effects.” And in 2010, the Arizona Supreme Court held that a police officer must obtain a warrant or voluntary consent before she may administer one of these alcohol-related blood, breath, or urine tests (see Carrillo v. Houser, 232 P.3d 1245 (Ariz. 2010)).

But when exactly is consent given voluntarily? And does Arizona’s implied consent law “require” you to submit to blood, breath, or urine tests absent a warrant? This past April, the Arizona Supreme Court further clarified these issues in State v. Valenzuela, 2016 Ariz. LEXIS 116 (Ariz. 2016). In Valenzuela, a driver was arrested on suspicion of driving under the influence of alcohol. After taking Valenzuela to the police station, the arresting officer read Valenzuela the standard “admin per se” form, which reads, in part, that “Arizona law requires you to submit to and successfully complete tests of breath, blood, or other bodily substances as chosen by a law enforcement officer to determine alcohol concentration of drug content.” After being warned that refusal to submit would lead to a one-year suspension of his driver’s license, Valenzuela submitted to the officer’s tests. His blood-alcohol concentration (BAC) was in excess of 0.20, and he was subsequently convicted of two counts of DUI.

Valenzuela challenged the admissibility of these tests, arguing that he had not consented to these tests voluntarily. The Arizona Supreme Court agreed. “The trial court[s] should examine the totality of the circumstances to decide whether consent was voluntary,” the Court held. But mere “acquiescence to a claim of lawful authority” is insufficient for a finding of voluntary consent. In other words, if the only reason you agreed to submit to an alcohol-related test is because a police officer told you to, your consent was not given voluntarily.

Police officer giving a roadside sobriety test to a drunk driver.

The proper steps an officer should take, according to the Court, would be to:

(1) Ask the arrestee whether she will consent to provide a blood, breath, or urine sample for drug/alcohol testing;

(2) (a) If the arrestee consents ➤ The officer may administer the tests without a warrant, but the officer must advise the arrestee that the results of these tests can and will be used against her in a court of law.

(b) If the arrestee does not consent ➤ The officer should advise the arrestee that her refusal will require her driver’s license to be suspended for one year.

(3) Again ask whether the arrestee will submit to the tests voluntarily.

(4) (a) If the arrestee consents ➤ The officer may administer the tests without a warrant, but the officer must advise the arrestee that the results of these tests can and will be used against her in a court of law.

(b) If the arrestee still does not consent ➤ The arrestee’s license will be suspended for one year, and the tests may not be completed without a warrant.

  • It should be noted, however, that an officer may validly obtain a sample of blood or other substances that were taken for legitimate medical purposes without a warrant.

In short, the Fourth Amendment protects you from being “required” to submit to warrantless blood, breath, or urine tests. (Note: The Fourth Amendment, however, does not require police to obtain a warrant for breath tests once you have been placed under arrest.) If you refuse to submit to these tests, however, you will pay the price: a one-year suspension of your driver’s license.