Arizona Court Issues Yet Another Implied-Consent Case

The issue of implied consent has been a hot topic in courts across the United States since the Supreme Court decided Birchfield v. North Dakota, which allowed warrantless breath tests to be conducted (but disallowed warrantless blood tests). In its most recent Arizona DUI opinion, the Arizona Supreme Court discussed whether Arizona’s implied-consent statute requires that an arrestee’s consent to test be voluntary. The court held that there is no voluntariness requirement.

The Facts of the Case

According to the court’s opinion, the defendant was stopped for suspicion of driving under the influence. The police officer who stopped the defendant read her the standard warnings, stating:

Arizona law states that a person who operates a motor vehicle at any time in this state gives consent to a test or tests of blood, breath, urine … If you refuse, or do not expressly agree to submit to, or do not successfully complete the tests, your Arizona driving privilege will be suspended. … Will you submit to the tests?

The defendant agreed to take the test, which showed she had a blood-alcohol content above the legal limit, and she was arrested and charged with DUI. The defendant challenged the admission of the test results, arguing that her consent was involuntary because the warnings provided by police were coercive. The trial court agreed, suppressing the test results and the prosecution appealed.

The Arizona Supreme Court’s Decision

The Arizona Supreme Court initially noted that the question of whether an arrestee consents to a breath test does raise constitutional concerns under Birchfield and other previous cases. Thus, the court limited its review of the case to whether Arizona’s implied consent statute contained a voluntariness requirement.

The court held that it does not, drawing a distinction between the words “agree” and “consent.” The court explained that the current version of the implied-consent statute provides only two options for motorists. Specifically, the statute explains that “a failure to expressly agree to the test or successfully complete the test is deemed a refusal.” Thus, under the terms of the statute, unless a motorist expressly agrees to testing, it is deemed a refusal.

The court went on to explain that the term “consent” was not in the statute’s discussion of breath tests, and only in the context of a motorist’s implied consent to testing by operating a motor vehicle. Thus, the court explained that the definition of “consent” is only relevant “to determine if an arrestee’s initial act implying consent—driving—requires voluntariness.”

The court ultimately held that Arizona’s implied-consent statute does not contain a voluntariness requirement. However, it is important to note that this opinion only applies to breath-test evidence, because under U.S. Supreme Court case law, arrestees have a greater privacy interest in their blood. Thus, blood draws must be preceded by consent or a warrant.

Have You Been Arrested for an Arizona DUI?

If you have recently been arrested for an Arizona DUI offense, contact Attorney James E. Novak to discuss your case and to find out how he can help you defend against the charges you are facing. Attorney Novak is a well-respected Arizona DUI defense attorney with significant experience handling all types of Arizona drunk driving cases, including those involving cases in which his clients have consented to breath or blood tests. To learn more, call 480-413-1499 to schedule a free consultation today.

Additional Resources:

• The 4th Amendment to the U.S. Constitution
• Birchfield v. North Dakota

Other Articles of Interest from The Law Office of James Novak’s Phoenix DUI Blog: Breath Tests, Implied Consent and the Exclusionary Rule in Arizona DUI Cases, Phoenix DUI Law Blog, February 25, 2019

Are Arizona DUI Checkpoints Legal?, Phoenix DUI Law Blog, March 13, 2019