Penalties For A DUI Breathalyzer Refusal?


In terms of the penalties for the refusal to submit to the tests, a person doesn’t have to do the preliminary breath test on the street. Once the person is placed under arrest and the officer advised them what’s called the administrative law or Admin Per Se advisement.  That law requires a person to submit to whatever chemical test the police want them to submit to, be it breath, blood or urine, test, whichever the officer chooses, and to successfully complete the tests or tests. If the person does not submit and successfully complete all of the tests then the person’s Arizona driver’s license or privilege to drive will be suspended.

If a person fails to submit and successfully complete the tests, then their driver’s license or privilege to drive is suspended for one year if it is a first refusal within seven years.  After the first 90 days of the suspension, the person is able to get a restricted license for nine months with an interlock device limiting them to driving to and from work and on the job. That’s a change I’d say about five years ago because it used to just be a straight one year of no driving. Now they can get the restricted permit, after the first 90 days of no driving.

If it is a second refusal within seven years, meaning the person did refuse within seven years of the date of a second refusal then the license is suspended for two years with no restricted driving at all. Believe it or not, I had one of those a few years ago; the person’s license is then suspended for two years with no driving at all.

If a person is required to do an interlock device because of another case, and they are arrested for a new DUI case and then the refuse to submit and successfully complete the tests then that can be charged as a felony.

Those are the three consequences of a refusal. First refusal, one year suspension with a restricted license after 90 days. The second refusal within a seven-year time period, it’s a two-year suspension of the driver’s license with no driving at all. A refusal when a person’s required by law to do an interlock, that can be charged as a felony.
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If someone asked me should they take the breath or blood test, I always say yes. The reason for that are the potential consequences. It could be any one of those three mentioned above.  I always tell them to submit and successfully complete the tests because if they do not the police departments can and usually do get telephonic search warrant for a blood sample.  If the person still refuses the police strap them in a chair to get the sample and then have the person charged with the crime of disobeying a court order.

In short, the police are going to get test results one way or another. The only question is, is the person’s license going to be affected by the refusal before they get it. For example, with an agency that’s only going to do breath tests to begin with, what will happen if the person refuses? They won’t get the breath test, but they’ll get a blood test, and the person’s the license will be suspended. Breath testing is always easier to attack in court than blood testing, and so therefore by virtue of the person refusing, not only did the person affect their driver’s license but the state got a more reliable blood test as well.

I always tell people, “Take the test. They’re going to get the results anyway.”  Years ago by when the police didn’t get the search warrant, it was better for the court case to refuse even though there was consequences against the license.  The test results are almost always evidence against the person at trial.  If the person refused and there were no test results, as long as you can come up with a reason for the refusal, you’ve got a shot at winning a trial.  For the most part, I think it was better not to have the test results although now refusing does not help.

What Are The Top Misconceptions People Have Regarding Breathalyzers?

There are a couple of other defenses, depending on the circumstances. One is mouth alcohol. Mouth alcohol is a problem, but what I should say is acid reflux is a problem in that acid reflux brings alcohol up into the mouth and it can affect the test results. I’ve used that as a defense. It’s somewhat of a misconception that that’s a good defense. It’s a defense, but it’s not necessarily a good one.

A second misconception people have if they have dentures that alcohol can get trapped in the mouth and, again, that would be a good defense.  It can affect the test results but it is not a strong defense. In terms of possible defenses, those are the two most common that people think would be a good defense. They are defenses, but not a particularly good ones.

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