Breath Analysis for Drunk Driving

You Take My Breath Away

Is Mandatory Breath/Blood Testing in a DUI Investigation Unconstitutional?

When someone is arrested for DUI, they are required pursuant to Arizona Law to consent to a test of their breath or blood.  A.R.S. §28-1321 states:

[a] person who operates a motor vehicle in this state gives consent . . . to a test or tests of the person’s blood, breath, urine or other bodily substance for the purpose of determining alcohol concentration or drug content if the person is arrested for any offense arising out of acts alleged to have been committed in violation (of DUI laws) or § 4-244, paragraph 34 [concerning driving with spirituous liquor in one’s body when under twenty-one years of age] while the person was driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor or drugs.

Is this statute Constitutional?  Does the taking of a person’s breath or blood constitute an unreasonable search and seizure?  The United States Constitution protects “the right of the people to be secure in their persons…against unreasonable searches and seizures.”  United States Constitution, Amendment IV.  Tests of bodily substances are searches controlled by the constraints of the 4th Amendment.

The Arizona court of Appeals in State v. Okken, 727 Ariz. Adv. Rep. 14, (Ariz.Ct.App.Dec 8, 2015), recently decided the Constitutionality of A.R.S. §28-1321.   The Court stated:

“  ‘[T]he cases involving arguments that unconstitutional conditions have been attached to state-proffered benefits . . . have turned on analysis of four general variables: (1) the nature of the right affected, (2) the degree of infringement of the right, (3) the nature of the benefit offered, and (4) the strength and nature of the state’s interest in conditioning the benefit.’ Comment, Another Look at Unconstitutional Conditions, 117 U. Pa. L. Rev. 144, 151 (1968). Here, the strength of the state’s interest in regulating intoxicated drivers, and the nexus between that interest and the administrative penalties prescribed by § 28-1321, support a finding of constitutionality. In view of the “carnage caused by drunk drivers,” the state’s “interest . . . in depriving the drunk driver of permission to continue operating an automobile is particularly strong.” Illinois v. Batchelder, 463 U.S. 1112, 1118, 103 S. Ct. 3513, 77 L. Ed. 2d 1267 (1983) (citation omitted); see also Mackey v. Montrym, 443 U.S. 1, 17-18, 99 S. Ct. 2612, 61 L. Ed. 2d 321 (1979). Further, the penalties provided by § 28-1321 are closely tailored to that important interest — the statute aims to ensure that dangerous drivers will be removed from the roadways even if they are able to avoid or lessen their criminal liability by delaying testing. Cf. Campbell, 106 Ariz. at 546-49 (upholding implied consent law as valid exercise of state’s police powers, holding that “the breathalyzer test is a reasonable means for achieving the goals of the legislature . . . . [and] . . . it is also reasonable to suspend the driver’s license of a person who refuses to submit to the tests”). The condition and the benefit are directly related, and the penalties are not facially unreasonable: a [ person who has not been arrested for DUI within the past seven years may refuse testing at the cost of a year’s suspension of driving privileges, and a person who has previously refused testing within the past seven years faces two years’ suspension. “

Under the current state of the law then, if a person is arrested for a DUI he must submit to breath or blood testing or risk losing his/her driver’s license for one year.

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