Originally Posted by TheREALDeal

There was a recent AZ Supreme Court case that held a person must give *explicit* consent to a blood test, absent a warrant. I don't think this holding is at all surprising.

But it reminded me how confused people are about DUI law. Police have propounded, and people have come to believe, that if you refuse a breath/blood test that you automatically lose your license for one year. That's not exactly true.

As with any analysis, let's start with the law:

A.R.S. 28-1321: Implied Consent

And...

Hopefully you're seeing the pattern... You do have to submit, or lose your license, *AFTER* you've been arrested for DUI. In practice, it means the following...

To arrest someone, the cop must have probable cause that the person committed a particular offense. I won't go into the probable cause standard, but suffice to say that it isn't a paper standard -- the police really need to show some proof/logic.

In practice, police shove a breathalyzer in front of your face and tell you to blow. You do. Then, based on the results, they arrest for DUI. Note that it doesn't happen the way the law prescribes -- you're not arrested and then told to blow. The catch is you were under no obligation to blow; you were not under arrest. When you blew in the above hypo, that's considered a consensual test. Once you consent to a search, you can't unring the bell and all of the evidence comes in against you.

If, however, you do not blow, the officer may still arrest you if he/she has probable cause, based on the totality of the circumstances, that you were driving under the influence. At that time, he may tell you to blow again and if you don't, you will lose your license. However, when you get to court, the whole case will center around whether or not the cop had probable cause to arrest you. That's a pretty big hurdle. If they cannot show probable cause for the DUI arrest, then the breath test never comes in as evidence against you because it's considered fruit of the illegal arrest. Maybe you win, maybe you don't, but you have greatly increased your chances. Moreover, you have set yourself up for a 1000x better plea deal because the prosecutor doesn't have a slam dunk.

Of course, my above scenario begs the question how do you know if you're under arrest. That's a very mushy standard and very fact intensive. Rather than trying to sort the legal standard on the side of Kolb road, the more definitive way would be to ask the cop. For instance...

"Here, blow." "Am I under arrest?" "No" "Then I'm not doing any tests or talking further."

But if he answers yes, then blow and fight it out in court. In both scenarios, what you blow, or didn't blow, will not be an issue.

Hopefully that busted some DUI legal myths.

Originally Posted by Cross

I honestly have no idea on that one, I don't understand Miranda anymore as I thought I read somewhere that once your arrested Miranda is a formality your rights already exist but who knows I am no Lawyer lol.