Implied Consent

The law in many states provides that under certain circumstances, a driver is deemed to have consented to have a blood, breath or urine test to determine the presence of alcohol or drugs in the driver’s system. It’s called “implied consent.” It is implied, because you don’t have to promise expressly that you’ll allow the test to be performed. It’s one of the conditions you accept when you use the roadways.

In Arizona, implied consent is contained in more than one statute, and covers different circumstances. A.R.S. 28-1321, for example, says that you consent to a blood, breath or urine test if you have been charged with DUI. A.R.S. 28-673, on the other hand, says that you consent to be tested where (a) you operate a motor vehicle that is involved in an accident, (b) resulting in death or serious bodily injury, (c) where the officer has probable cause to believe that the person caused the accident or where the person was issued a traffic citation. It is this statute that the bill seeks to modify.

The Proposed Change in the Law

Senate Bill 1054 (2017) seeks only to change a few words in A.R.S. 28-673, and the change has nothing to do with the conditions under which a sample may be required. What the bill would do is make it mandatory that the officer require the test if the conditions set forth in the statute exist. It is an attempt to take away discretion on the part of the officer on whether, and under what circumstances, to demand an alcohol or drug test.

The bill apparently is the result of lobbying by the parents of a young boy killed when a tractor trailer did not see activity ahead on the highway, and crashed into several vehicles, causing at least two deaths. The driver of the truck was not tested for drugs or alcohol, because the trooper did not require it, and the driver was not charged with a crime. The bill is being referred to as “Joe’s Law,” after the boy who lost his life in the accident.

In the meantime, a refusal to provide a sample may have serious consequences, including loss of your driver’s license. But the U.S. Supreme Court ruled last year that criminal penalties for refusing to take a blood test, where the police have not obtained a warrant, may be unconstitutional in some cases.

Law Offices of David A. Black
40 North Central Avenue #1850
Phoenix, AZ 85004
(480) 280-8028

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