SUMMARY OF ARIZONA’S ADMINISTRATIVE
DRIVER’S LICENSE SUSPENSION LAW
The law pertaining to
drinking and driving is sometimes complicated and confusing. The
majority of the pertinent statutes can be found in Title 28 of the
Arizona Revised Statutes. This overview discusses the law in
Arizona and some of the issues that are most commonly confronted
in a drinking and driving case.
A typical drinking and driving case usually includes criminal
and civil issues. The civil issues usually pertain to driving
privileges.
Implied Consent
The law states that any person who operates a motor vehicle within
the state of Arizona and is arrested for an offense related to
drinking and driving is presumed to have given consent to a test
of his/her breath, blood, urine or other bodily substance, for the
purpose of determining alcohol concentration. The arresting officer
has the authority to decide what type of test the driver must
complete and the authority to require more than one type of test. The law also states
that a person who is dead, unconscious, or otherwise incapacitated
is deemed not to have withdrawn consent.
The arresting officer
must inform the driver that a refusal shall result in a license
suspension for twelve months. The officer must also inform the
driver that if the test results indicate an alcohol concentration
of .08 or more for a non-commercial driver’s license, then driving
privileges will be suspended for ninety days. Almost any failure to
expressly agree to the test(s) or successfully complete them will
be deemed a refusal and result in a twelve month suspension of
driving privileges.
Field Sobriety
Tests
The implied consent rules should not be confused with your right
to voluntarily submit to or refuse to take a roadside field
sobriety test before an arrest is made. Field sobriety tests
are completely voluntarily. If you submit to being tested, you
might be arrested anyway, and the evidence obtained by the
arresting officer during the test can be submitted as evidence
against you.
Refusal to
Submit to Alcohol Testing
If a driver refuses to complete the breath or blood test(s) as requested by the
officer, then the statute mandates that none shall be given with
two exceptions. First, the officer can attempt to obtain a search
warrant for a blood sample. Second, if a sample of
the driver’s blood or urine is taken for any other reason within
two hours of the time of driving (e.g., a doctor may require a
blood sample because some medical procedures cannot be safely
performed if alcohol or drugs are within the body), the officer is
entitled to a portion of that sample. Refusing to submit to
testing for alcohol content will result in a twelve month
suspension of driving privileges, regardless of the outcome of the
criminal trial in most cases.
Suspension of
Driving Privileges
If a suspension appears warranted the officer will issue it on the
day of the arrest. It will commence fifteen days from the date it
was issued and the driver is then prohibited from operating a
motor vehicle. The loss of driving privileges can occur before the
driver has been convicted. In fact, it usually begins well in
advance of the trial.
Staying a
Suspension
The suspension will be stayed if, within fifteen days of the date
of issuance, the driver requests either a;
- summary review or,
- Motor Vehicle
Department hearing.
If summary review is
requested, the driver submits a written argument as to why his/her
driving privileges should not be suspended. Driving privileges
shall remain in effect for at least twenty days from the date of
the request. The documents will be reviewed without a hearing and
the driver will be notified of the decision.
If a hearing is
requested, the suspension is stayed and the driver is considered
to have a valid license at least until the day of the hearing. The
hearing will usually take place in the county in which the driver
resides, unless the officer requests otherwise.
Motor Vehicle
Department Hearings
Motor Vehicle Department hearings usually occur before any
criminal trial. The rules of evidence that normally apply at a
criminal trial do not apply at these hearings. This is an
administrative hearing and the driver has the
right to be represented by legal counsel during the proceeding.
In the case of a
refusal, the purpose of the
hearing is to determine whether there are sufficient grounds to
revoke the driving privileges of the driver, based upon the
following:
-
whether or not the officer had
reasonable grounds to believe that the person charged was
driving a vehicle while under the influence;
-
that the person was placed under arrest;
-
that he/she was informed of the consequences of refusal;
-
and that he/she did not successfully complete the chemical test(s).
In a
non-refusal case where the driver completed the chemical test(s),
the state must prove by a preponderance of the evidence that;
-
the officer had
reasonable grounds to believe the person was driving a
vehicle while under the influence;
-
the person was
placed under arrest;
-
a valid and
reliable test was completed, and
-
it indicated a
result of .08 or more for a non-commercial license, or .04 or
more for a commercial license while driving a commercial
vehicle; and
-
that the result was accurately evaluated.
Results of the
Hearing
If the state fails to meet its burden of proof at the hearing, the
driver’s privileges will not be suspended. However, this does not
mean his/her driving privileges are immune from suspension. A
conviction in the criminal portion of the drinking and driving
charge will result in a suspension for the same time period that
would have been ordered had the state met its burden at the Motor
Vehicle Department hearing.
The major difference
is that a suspension that results from a criminal conviction will
ultimately require the driver to obtain SR-22 insurance, which is
usually more expensive, in order to have his/her driving privilege
reinstated while a suspension which stems from a Motor Vehicle
Department hearing will not create this situation.
If the state does
meet its burden of proof at the hearing, the driver's privileges
will be suspended. However, the driver may have the right to
petition for a review with Superior court.
Petition for
Review
In a non-refusal case the driver (or driver's legal
counsel) must file a motion for rehearing with the Motor Vehicle
Department before a petition for review may be filed with Superior
court. In a refusal
case, a motion for rehearing is not required before a petition for
review is filed in Superior Court. A petition for review
by Superior Court must be filed within thirty days of the Motor
Vehicle Department’s final order of suspension and will be heard
on an expedited basis.
Period of
Suspension
In a non-refusal case, if the test results indicate an alcohol
concentration of .08 or more for a non-commercial driver’s
license, then driving privileges will be suspended for ninety
days. However, so long as the driver did not cause serious
physical injury to another person, has not been convicted of a
prior drinking and driving charge in the past sixty months, and
has not had his/her privilege to drive suspended for a prior
drinking and driving charge, he/she is entitled to a reduced
punishment of a thirty day suspension and a sixty day restricted
license.
In a refusal case,
driving privileges are revoked for twelve months and no restricted
permit is available for any reason.
Reinstating
Driving Privileges
Driving privileges are not automatically reinstated following a
period of suspension. The driver must complete some paperwork and
tender a fee to have his/her privileges reinstated, otherwise
his/her privileges to drive are still considered to be suspended.
This fact is sometimes overlooked by drivers and may result in
stiff penalties should the driver commit another driving offense
while his/her license is still considered suspended.
Special Circumstances - Aggravated DUI and Repeat Offenders
In addition to a suspension of driving privileges, some drivers
suffer a subsequent revocation as well. The law states that a
person convicted of a second drinking and driving charge within
sixty months of the first one shall have his/her driving privilege
revoked for a period of not more than one year. A person convicted of
aggravated drinking and driving will suffer a three year
revocation period. Reinstatement of the
privileges following a revocation is much more difficult than
following a suspension. It involves an investigation of the
driver’s character, habits, and driving abilities as well as a
written evaluation from a physician, psychologist, or certified
substance abuse counselor stating that the person is able to
safely operate a motor vehicle.
