By Gordon Thompson, Phoenix DUI & Criminal Defense Attorney — licensed in Arizona since 1982 · Last reviewed August 19, 2026

Does Asking for a Lawyer Count as Refusing a DUI Blood Test in Arizona?

Short answer: No — but it doesn’t necessarily stop police from getting your blood anyway. Under State v. Stanley, 217 Ariz. 253 (Ariz. App. 2007), Arizona’s Court of Appeals ruled that simply asking to speak with an attorney during a DUI stop is not, by itself, a “refusal” under Arizona’s implied consent law, A.R.S. § 28-1321. But the court also ruled that police don’t need a refusal at all to get a search warrant for your blood. Understanding both halves of this ruling matters if you’re facing a DUI charge in Phoenix or anywhere in Arizona.

The Case: State v. Stanley

Jennifer Stanley was arrested for DUI in Maricopa County. After officers read her the implied consent admonition and asked her to submit to a blood test, she said she didn’t understand — and then asked for an attorney. While she was on the phone with her lawyer, the arresting officer submitted an affidavit for a search warrant. The affidavit never claimed Stanley had refused testing, because at that point, she hadn’t. Officers later drew her blood under the warrant.

Stanley moved to suppress the blood test results, arguing that exercising her right to counsel could not be twisted into a “refusal,” and that the warrant affidavit was defective because it never alleged one. The trial court disagreed and convicted her of aggravated DUI. She appealed.

Issue One: Is Requesting an Attorney a “Refusal”?

Arizona’s implied consent statute states that a “failure to expressly agree” to testing “is deemed a refusal.” A.R.S. § 28-1321(B). The State argued Stanley’s silence while she consulted counsel amounted to exactly that.

The Court of Appeals disagreed. Relying on prior Arizona Supreme Court precedent — State v. Juarez and Kunzler v. Superior Court — the court held that a driver has the right to consult with an attorney before deciding whether to take a test, as long as doing so doesn’t hinder the investigation. A request for counsel, standing alone, is not a refusal. It only becomes one when something more is present, such as delay that actually interferes with the DUI investigation.

This is good news for drivers: invoking your right to counsel is not, by itself, held against you as a refusal that can trigger license suspension consequences tied to refusal.

Issue Two: Police Don’t Need a Refusal to Get a Warrant

Here’s the part that surprises a lot of people. Even after ruling that Stanley hadn’t refused, the court still upheld the search warrant and her conviction. Why? Because the court found that Arizona’s implied consent statute does not require a refusal before police may seek a warrant for a blood draw.

Before 1990, the older version of the statute said that if a suspect refused testing, “none shall be given” except in narrow circumstances — meaning a refusal actually blocked testing absent limited exceptions. The Legislature removed that language in 1990 and added the option for police to obtain a search warrant instead. The Court of Appeals in Stanley concluded that this amendment means a warrant can issue any time a suspect hasn’t given clear, express consent — refused or not — as long as ordinary search warrant requirements (probable cause, a supporting affidavit) under A.R.S. §§ 13-3912 and 13-3913 are met.

In practical terms: whether or not you technically “refused,” police can still ask a judge for a warrant and compel a blood draw once there’s probable cause for DUI. The warrant affidavit doesn’t even need to mention refusal.

A Split on the Right to Counsel

Notably, one judge wrote separately to disagree with part of the majority’s reasoning. The concurring judge argued that Stanley’s non-submission while consulting an attorney should have counted as a refusal, and questioned whether the right to consult counsel before testing is truly constitutionally guaranteed in the DUI context, as opposed to a right created by court rule. Both judges agreed the conviction should stand, but for different legal reasons — a sign that this area of Arizona DUI law involves real judgment calls, not simple bright-line rules.

What This Means for You

• Asking for a lawyer during a DUI stop is your right, and Arizona case law says that request alone should not be treated as a refusal.
• That protection has limits. If consulting counsel drags on and appears to delay or hinder the investigation, prosecutors may still argue it functioned as a refusal.
• A warrant can be used against you either way. Even if you never refused, and even if the affidavit doesn’t say you refused, a judge can authorize a blood draw once officers show probable cause for DUI.
• Timing is everything in these cases. When you asked for a lawyer, when the officer applied for the warrant, when the warrant was issued, and when your blood was actually drawn can all become critical facts in challenging the evidence.
• The affidavit and warrant themselves can still be attacked on other grounds — insufficient probable cause, defects in the application, or how the warrant was executed — independent of the refusal question.

If you asked for an attorney during a DUI stop and your blood was drawn anyway, that does not mean your case is over. It means the facts and timeline need careful review by someone who knows this area of law.

About Gordon Thompson

Gordon Thompson is a Phoenix, Arizona DUI and criminal defense attorney who has practiced law since 1982 and handled more than 6,000 cases. His practice is limited exclusively to DUI and criminal defense — he does not handle any other area of law. He is a graduate of Syracuse University College of Law and a member of the State Bar of Arizona. Gordon appears personally in Municipal and Justice Courts throughout Maricopa County (Phoenix, Scottsdale, Tempe, Mesa, Chandler, Gilbert, Glendale, Peoria, Avondale, Surprise, Goodyear, Buckeye) and Pinal County (Apache Junction, Maricopa, Casa Grande), as well as select courts in Northern Arizona. He offers a free consultation and an all-inclusive flat fee of $2,800–$3,300 with no hidden costs or separate trial fee.

If you were arrested for DUI in Arizona and asked for an attorney before your blood was drawn, call Gordon Thompson at (602) 467-3680 for a free consultation.

Frequently Asked Questions

Is asking for an attorney during a DUI stop in Arizona considered a refusal?

No. In State v. Stanley, 217 Ariz. 253 (Ariz. App. 2007), the Arizona Court of Appeals held that requesting to consult an attorney, standing alone, is not a refusal under Arizona’s implied consent statute, A.R.S. § 28-1321. It only becomes a refusal if combined with something more, such as delay that actually hinders the investigation.

Can police get a search warrant for my blood even if I never refused the test?

Yes. Stanley held that a refusal is not required before police can seek a search warrant under A.R.S. § 28-1321(D)(1). Even without a clear refusal, officers can still obtain a warrant and compel a blood draw if they show probable cause.

Do I have a constitutional right to speak with a lawyer before taking a DUI breath or blood test in Arizona?

The Stanley majority said yes, drivers have a right to consult counsel before deciding whether to test, as long as it doesn’t disrupt the investigation, based on State v. Juarez and Kunzler v. Superior Court. A specially concurring judge in the same case disagreed that this right is constitutionally guaranteed in the DUI-testing context, so this issue isn’t entirely settled.

Does the search warrant affidavit have to say I refused the test?

No. Because a refusal isn’t required to obtain a warrant under A.R.S. § 28-1321(D)(1), the affidavit supporting the warrant does not need to state that the driver refused testing.

What should I do if I asked for an attorney during my DUI arrest and blood was still drawn under a warrant?

Speak with a DUI defense attorney promptly about the exact timeline — when you asked for counsel, when the warrant was requested and issued, and whether any delay affected the investigation. These facts can determine whether there are grounds to challenge the warrant or suppress the evidence.

This article discusses Arizona case law and is provided for general informational purposes only. It is not legal advice and does not create an attorney-client relationship. Every DUI case depends on its own facts — contact an attorney to discuss your specific situation.