Challenging Title 28 Implied Consent Violations and Refusal Warnings
Under Arizona's Implied Consent Law (A.R.S. § 28-1321), anyone who drives a vehicle in this state is considered to have given permission for a blood, breath, or urine test if they are arrested for a DUI. If you refuse the test, the state can suspend your driver's license for a full year.
Prosecutors often treat a test refusal as automatic proof of guilt. However, over my 42 years of criminal defense practice in Phoenix, I have successfully argued that a "refusal" is often the result of confusing, misleading, or illegal actions by the arresting officers.
The Law Enforcement Requirement for Flawless "Admin Per Se" Warnings
Before the police can penalize you for refusing a chemical test, they must read you the Admin Per Se / Implied Consent Affidavit form word-for-word. The law requires them to explain your choices and the consequences in a clear, unambiguous way.
Officers are legally forbidden from using intimidation, tricks, or false threats to force you to submit to a test. If an officer exaggerates the penalties—such as telling you that you will go to jail immediately just for refusing the blood draw—they have violated the law. Furthermore, if you do not speak English fluently and the officer fails to provide a certified translation of the warning, your "refusal" cannot legally be used against you to suspend your license.
Protecting Your Right to Counsel Under Rule 6
One of the most common police violations occurs when a driver asks to speak to an attorney. In Arizona, Rule 6.1 of the Arizona Rules of Criminal Procedure gives you the right to consult with a lawyer as soon as feasible after an arrest.
If you tell the officer, "I want to talk to my lawyer before I take this test," the officer cannot automatically log that as a refusal. They must provide you with a phone and a reasonable, private opportunity to call an attorney, provided it does not unacceptably delay their investigation. If the police refuse to let you make a phone call, or if they listen in on your confidential conversation with your lawyer, they have violated your constitutional rights. We can use these structural violations to fight your MVD license suspension and argue for a complete dismissal of your criminal charges.
Put 42 Years of Aggressive Local Defense in Your Corner.
If you are facing an MVD license suspension or a DUI charge due to an alleged refusal, the police paperwork may not tell the whole story. Contact Brian DiPietro Law, PLLC today at 623-242-2655 for a free, completely confidential consultation regarding your defense.
If you are facing an MVD license suspension or a DUI charge due to an alleged refusal, the police paperwork may not tell the whole story. Contact Brian DiPietro Law, PLLC today at 623-242-2655 for a free, completely confidential consultation regarding your defense.
