The Law Offices of John Phebus

Should you refuse a breath test if you have been drinking underage?

With the state's penalties for underage drinking being as high as they are, it can be tempting to resist medical testing for intoxication, especially if you believe that you are not intoxicated but have had enough alcohol to break the statute regarding underage drinking. It seems like a slam-dunk idea, especially if you believe you can pass standard field sobriety tests, which demonstrate the ability to safely operate a motor vehicle without impairment. Learn how that may not be the best decision.

Screening measures

Any time an officer asks you to submit to a blood or breath test in Arizona, a law called the "implied consent law" provides for penalties for refusing. The theory behind the law is simple: Since driving is a privilege and not a right, and since it is one that has a high impact on public safety, the acceptance of a driver's license implies consent to screening measures relating to driving under the influence. The exact mechanics of the law vary from state to state, but every state has some variation on them.

Penalties for refusing a test

In Arizona, the penalties for refusing a test are straightforward:

  • 12 month license suspension
  • Use of your refusal against you in proceedings for other charges

This means that when you refuse, you will not only lose your license, which is not guaranteed to happen otherwise, and your refusal to test will also be used as evidence for other charges, including minor in possession and DUI charges.

Implied consent and the 4th Amendment

The law around searches and seizures is very complicated, but when it comes to implied consent laws, it is simple. Courts have held time and again that the law is constitutional. In fact, one test case was just decided in 2015, when the State Supreme Court ruled the law constitutional, overturning a 2013 decision by a lower court that called into question the ability of minors to consent to these kinds of searches.

If you are asked to take a test

Your best bet if you are asked to take a breath, urine or blood test is to simply go through with it. There are few, if any, cases where it would be beneficial to resist, because of the way the law is structured. Instead, insist on your right to an attorney immediately upon arrest, and avoid making any statements to the police until you have received qualified legal advice from someone who understands this part of the law thoroughly.

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