Breath Test and Refusal Cases:

Remember, ask to call and talk with an attorney before making this decision.

Usually, on misdemeanor DUI cases, it is wise to consent to a blood, breath, or urine test to determine you BAC after an arrest for DUI as you will generally be suspended for 90 days. Where a refusal to do the requested test can result in 1 year suspension of your driving privileges and can only get a restricted license with an ignition interlock device to drive after 90 days. A.R.S. §28-1321(K).

However, if you are convicted for a 2nd offense misdemeanor DUI within 7 years, you will lose your license for 1 year anyway and would incur at least an additional 30 days or more in jail. In this case it is usually wise to refuse to consent to a breath or blood test. However, if this offense will be an Aggravated DUI (i.e., third offense within 7 years, license currently suspended, minor child in vehicle, ignition interlock restriction), then refuse to consent to blood, breath or urine because you now face harder incarceration time and 3 years revoked driver's license.

If you do refuse, the officer can then phone a judge in order to secure a search warrant. Once they receive this document, the officer must show it to you and at this point you should cooperate to avoid possible additional charges and have them forcibly take the blood.</

Blood and Urine Cases:

If your case involved the taking of blood or urine during your DUI arrest, you will need to wait and see if your results come back above or below a 0.08%. The DMV office will then notify you with a "Corrective Action Notice" (i.e., notice of suspension) and when you receive this you should contact us so we can request a hearing on your behalf as this request needs to be done within fifteen (15) days of the date of that notice.

Dealing With The DMV:

A DUI arrest and/or conviction can impact your driver's license and your ability to drive.  People have considered a driver's license suspension as the most serious penalty as this can affect their personal life as a result of a DUI.

Arizona MVD Hearings:

Arizona Department of Transportation Motor Vehicle Division (MVD) hearings are civil in nature and the hearings are more informal and are decided by an Administrative Law Judge by a preponderance of the evidence (more likely than not) versus the much higher standard of beyond a reasonable doubt standard in criminal court. MVD conducts different types of hearings depending on the nature of the suspension or other contemplated action.

In the case of a refusal, the purpose of the hearing is to determine whether there are sufficient grounds to revoke the driving privileges of the driver, based upon the following:

• whether or not the officer had reasonable grounds to believe that the person charged was driving a vehicle while under the influence;
• that the person was placed under arrest;
• that he/she was informed of the consequences of refusal;
• and that he/she did not successfully complete the chemical test(s).

In a case where the driver completed the chemical test, the state must prove by a preponderance of the evidence that;

• the officer had reasonable grounds to believe the person was driving a vehicle while under the influence;
• the person was placed under arrest;
• a valid and reliable test was completed, and
• it indicated a result of .08 or more for a non-commercial license, or .04 or more for a commercial license while driving a commercial vehicle; and
• that the result was accurately evaluated.

Admin Per Se [A.R.S. §28-1385(F)] / Implied Consent Affidavit [A.R.S. §28-1321(K)]:

Usually, an Officer issues to the driver with a result of BAC is 0.08% or higher or if you refused to submit to the test a document called the Admin Per Se / Implied Consent Affidavit consisting of a pink and yellow piece of paper.

A request for a hearing must be made within 15 days from the time the Affidavit was served to by filing out the back of the pink sheet and sending it to the DMV address on the upper left hand of the front side. A.R.S. §28-1385(C). If this is not done in time suspension will immediately go into effect.

If the request for hearing is made within the 15 days, a "Hearing Date Notice" and your license remains as the same status as before the request was made. A.R.S. §28-1385(H). You will have the yellow copy in your possession which will serve as your "Temporary License." If you need identification you can go to MVD and request a temporary (to avoid automatic driver's license suspension) identification card or use a passport.

The DMV hearing is also an excellent discovery tool that provides the first opportunity to commit police personnel to a "story" under oath and any inconsistencies between their testimony at the DMV hearing and their testimony at a possible trial provides valuable grounds for impeachment.

Prior to the actual DMV hearing, if you have retained us, we will have you in for a "Pre-DMV consultation and at this consultation, we will discuss with you the various options regarding whether to "Void" the suspension, "Stipulate" to the suspension in order to receive a "Work Permit" and possible SR-22 requirement. An SR22 is proof of financial responsibility filed with Arizona following various court ordered license suspensions that must be carried for 3 years for drivers who MVD considers to be a higher risk.

Our office can file all the necessary paperwork to protect your right to drive pending a hearing before the Arizona Department of Motor Vehicles which is presided over by an administrative law judge where you will be represented by knowledgeable and experienced counsel who will fight for your rights.

Period of Suspension:

Usually in a DUI charge the driving privileges will be suspended for 90 days and for those who possess an Arizona driver license can usually reduce the punishment to a 30 day suspension and the following 60 days to a restricted license - allowing you to drive to and from work, school and doctor.

In a case of refusal to complete the test, driving privileges are revoked for 12 months and no restricted permit is available for any reason.

Reinstating Driving Privileges:

Your driving license privileges are not automatically reinstated following a period of suspension. You must pay the reinstatement fee with Arizona MVD and complete some paperwork; otherwise your driving privileges to drive are still considered to be suspended. This can lead to additional unintended penalties if overlooked by drivers as Arizona still considers your driver's license suspended.

Points Suspension:

A DUI is an 8 point driving violation and Arizona requires that any individual who gets 8 to 12 points in a 1 year period must attend Traffic Survival School (TSS) or face a 90 day suspension and if you have already attended TSS in the last 2 years the 90 day suspension will automatically be imposed. This suspension is not based on any other prior driving violations.

It is important to note that you must have a suspended license reinstated and pay the reinstatement fee in order to get the suspension removed and your driving privileges back. This even applies to individuals with out of state licenses.

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