Refusing a Breath Test in Arizona: What Really Happens?
Being arrested for DUI can be overwhelming. One of the most common questions drivers ask is whether they should refuse a breath test.
Many people believe refusing a breath test will prevent prosecutors from obtaining evidence of intoxication. Others believe refusal automatically means they will lose their license or be convicted of DUI.
Neither is entirely correct.
Arizona has one of the strictest DUI laws in the country, and refusing a breath, blood, or urine test can have significant consequences. However, refusing a test does not automatically mean you will be convicted of DUI, and it does not always prevent law enforcement from obtaining evidence of your blood alcohol concentration (BAC).
If you have been arrested for DUI in Phoenix or anywhere in Arizona, here's what you need to know.
Arizona's Implied Consent Law
Arizona's implied consent law is found in A.R.S. § 28-1321.
Under this law, anyone who drives a motor vehicle in Arizona is deemed to have given consent to testing of their blood, breath, urine, or other bodily substances if they are lawfully arrested for DUI.
This does not mean police can automatically force you to submit to testing.
Instead, if you refuse, Arizona law provides administrative consequences and allows officers to seek other legal means of obtaining evidence, including a search warrant.
What Counts as a Refusal?
A refusal is not limited to saying "no."
Arizona law recognizes several actions that may be treated as a refusal, including:
Explicitly refusing the test
Remaining silent after being requested to submit
Failing to cooperate with testing
Purposely providing an insufficient breath sample
Delaying the testing process until it cannot be completed
Whether someone actually refused testing often becomes an issue in DUI litigation.
What Happens Immediately After a Refusal?
If an officer believes you refused testing after a lawful DUI arrest, several things may occur.
First, the officer will typically serve you with an Admin Per Se affidavit and notice of suspension.
Second, your driver's license may be immediately surrendered, and you may receive a temporary driving permit if applicable.
Third, you have the right to request an administrative hearing with the Arizona Department of Transportation (ADOT) Motor Vehicle Division to challenge the suspension. That request generally must be made within 15 days of receiving the notice. Failing to timely request a hearing usually results in the suspension taking effect without a hearing.
Because deadlines are short, it is important to contact a DUI attorney as soon as possible after an arrest.
Will Your License Be Suspended?
Yes, if the refusal is ultimately upheld.
Under Arizona's implied consent law, refusing a chemical test typically results in a 12-month driver's license suspension for a first refusal.
If you have had a prior implied consent refusal within the previous 84 months, the suspension generally increases to two years.
This administrative suspension is separate from the criminal DUI case.
Even if the DUI charge is later dismissed or reduced, the administrative license suspension may still apply unless it is successfully challenged.
Can Police Still Get Your Blood?
Yes. One of the biggest misconceptions about Arizona DUI law is that refusing a breath test prevents police from obtaining chemical evidence.
In many cases, officers simply apply for a search warrant.
If a judge finds probable cause, the warrant authorizes officers to obtain a blood sample despite the driver's refusal.
Today, search warrants are common in Arizona DUI investigations, particularly in Maricopa County.
As a result, refusing a breath test does not necessarily prevent prosecutors from obtaining BAC evidence.
Can Police Force You to Take a Breath Test?
Generally, no. If you refuse a breath test, officers typically cannot physically force you to blow into the machine.
Instead, they often seek a warrant authorizing a blood draw.
Arizona law distinguishes between breath testing and blood testing, and the procedures vary depending on the circumstances.
Will Refusing the Test Help Your DUI Case?
Not necessarily. Some people assume that refusing chemical testing leaves prosecutors without evidence.
However, prosecutors may still rely on:
Officer observations
Driving behavior
Field sobriety test performance
Body camera footage
Dash camera video
Witness statements
Admissions made by the driver
Blood test results obtained through a warrant
In addition, the prosecution may generally introduce evidence that the driver refused testing. Depending on the circumstances, the jury may consider that evidence along with all of the other evidence presented at trial.
Every DUI case is different, and whether a refusal ultimately helps or hurts the defense depends on the facts.
Can You Refuse Field Sobriety Tests?
Yes, in most situations.
Unlike Arizona's implied consent law, which applies to chemical testing after a lawful DUI arrest, field sobriety tests are generally voluntary.
These roadside tests may include:
Horizontal Gaze Nystagmus (HGN)
Walk-and-Turn
One-Leg Stand
Drivers generally may decline to perform these tests, although officers may continue their DUI investigation using other observations.
Is the Preliminary Breath Test Different?
Yes. Before an arrest, an officer may ask you to take a portable breath test (PBT) at the roadside.
In Arizona, the preliminary breath test is generally voluntary for most drivers and is primarily used to help officers decide whether probable cause exists to make a DUI arrest.
This roadside test is different from the evidentiary breath test typically requested after arrest.
Criminal Case vs. License Suspension
Many people do not realize that two separate cases begin after a DUI arrest.
Criminal DUI Case
The criminal case determines whether you are guilty of DUI.
Possible penalties include:
Jail
Fines
Probation
Ignition interlock requirements
Alcohol education
Community service
The prosecution must prove the criminal charges beyond a reasonable doubt.
Administrative License Suspension
The Admin Per Se proceeding determines whether your driver's license should be suspended under Arizona's implied consent law.
This administrative process is handled separately through ADOT.
Winning one proceeding does not automatically determine the outcome of the other.
Can a Refusal Be Challenged?
Yes. Several legal issues may arise in refusal cases, including:
Whether the officer had reasonable grounds to believe you were driving under the influence
Whether the arrest was lawful
Whether the implied consent admonitions were properly given
Whether your conduct actually constituted a refusal
Whether officers complied with Arizona's implied consent procedures
Because every case is different, an experienced DUI attorney can evaluate whether the refusal and resulting license suspension may be challenged.
Should You Refuse a Breath Test?
There is no one-size-fits-all answer.
Every DUI investigation is different, and the consequences of refusing can be significant.
Making decisions during a DUI stop based on myths or advice found online can have long-lasting consequences.
The best course is to understand your constitutional rights, remain respectful, avoid making incriminating statements, and consult with an experienced Arizona DUI attorney as soon as possible after your arrest.
Speak With a Phoenix DUI Lawyer
A DUI arrest does not automatically mean a conviction.
At Millar Law, we represent clients throughout Phoenix, Scottsdale, Mesa, Chandler, Gilbert, Tempe, and communities across Maricopa County in DUI and criminal defense matters.
We carefully examine every aspect of the investigation, including the traffic stop, field sobriety tests, chemical testing procedures, implied consent issues, search warrants, and constitutional violations.
If you refused a breath or blood test, or if police obtained a search warrant for your blood, you may have legal defenses that can affect both your criminal case and your driving privileges.
Contact Millar Law today to schedule a confidential consultation— (602) 900-0545.
Frequently Asked Questions
What happens if I refuse a breath test in Arizona?
If you refuse after a lawful DUI arrest, your driver's license may be subject to a 12-month administrative suspension for a first refusal under Arizona's implied consent law. You also have the right to request an ADOT hearing to challenge the suspension.
Can police get a warrant for my blood if I refuse?
Yes. In many Arizona DUI investigations, officers obtain a search warrant authorizing a blood draw after a driver refuses chemical testing.
Will refusing a breath test prevent a DUI conviction?
Not necessarily. Prosecutors may still rely on blood test results obtained through a warrant, officer observations, field sobriety tests, video evidence, witness testimony, and other evidence.
Can I refuse field sobriety tests?
In most situations, yes. Field sobriety tests are generally voluntary and are different from the post-arrest chemical tests governed by Arizona's implied consent law.
Should I hire a DUI attorney after refusing a chemical test?
Because refusal cases involve both a criminal prosecution and a separate administrative license suspension, speaking with an experienced Arizona DUI attorney as soon as possible can help you understand your rights, preserve deadlines, and evaluate potential defenses.
