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Consent in a DUI Investigation

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Coerced vs Actual Consent in DUI Investigations

Is a person "required" to consent to a breath or blood test after Valenzuela?

Don't get too excited about a recent Arizona Supreme Court case, State v. Valenzuela,No. CR-15-0222-PR, April 26, 2016. On the surface, one would think that the Court's discussion centered on the validity of the Admin Per Se law in Arizona which, essentially requires a person to submit to a breath or blood test in a DUI investigation or suffer civil penalties. However, the only issue decided by the Arizona Supreme Court was whether consent would be presumed or whether a finding needs to be made as to whether someone actually consents to the search.

The Fourth Amendment to the United States Constitution protects individuals against "unreasonable searches and seizures," and any evidence collected in violation of this provision is generally inadmissible in a subsequent criminal trial. Mapp v. Ohio, 367 U.S. 643, 654 (1961). A compelled blood draw or breath test administered pursuant to § 28-1321 (Admin Per Se) is a search subject to the Fourth Amendment's restrictions. The "admin per se" form provides in part that "Arizona law requires you to submit to and successfully complete tests of breath, blood or other bodily substance as chosen by a law enforcement officer to determine alcohol concentration or drug content." Refusal results in a one-year suspension of a person's driver's license. Additionally, if a person refuses, an investigating officer can obtain a warrant for breath or blood with sufficient probable cause that a person is DUI.

The Arizona Supreme Court held in Valenzuela that a challenge to the breath/blood results based on lack of consent requires an examination of the totality of circumstances surrounding the investigation and a determination whether the consent was sufficiently independent of an assertion of lawful authority to conduct the search. This means that you can consent or not, but the civil penalties still apply as well as the potential for a warrant to obtain the blood or breath anyway. A challenge of the breath/blood results will trigger a factual evaluation by the Court as to whether a person actually consented to the search or whether a person was compelled to consent to the search. If the Court finds that the consent was "coerced," or that the submission to a blood or breath test was otherwise involuntary (and without a warrant), then the results will be excluded.

If you have been subject to a DUI investigation please call us at West, Longenbaugh & Zickerman, PLLC, so that we can help you through the legal process with "Big Firm Representation, Small Firm Caring."

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