Articles Posted in DUI Testing

Quantifying the impact of alcohol upon a person has long been a goal of the scientific community, with studies dating back as early as 1874. In the contemporary legal setting, the breathalyzer test, also known as alcohol breath testing, is touted as a highly accurate and definitive tool for detecting Blood Alcohol Content (BAC). BAC is a vital measure for determining if someone is operating a vehicle under the influence of alcohol. Unfortunately, breathalyzer tests are not always as accurate as they are portrayed to be. Here are 10 instances where breathalyzer tests can miss the mark:

  1. Breath machines are responsive to temperature and will provide inaccurate readings if not calibrated to adjust to a change in ambient temperature.
  2. The pattern of breathing may affect the validity of a test. Holding your breath for 30 seconds could result in an increase of a BAC of .07% to .081% or more.

When is Your Consent to a DUI Breath or Chemical Test Considered Involuntary, under the State's Implied Consent Law? 

Truck-DUI-Implied-Consent-Criminal-Defense-Attorney-Mesa-AZ-21-150x150A DUI breathalyzer or chemical test is considered a protected search under the 4thAmendment of the U.S. Constitution. This means that police need a warrant with probable cause to conduct a DUI breath, blood or urine test, even under Arizona’s Implied Consent law.

There are a few exceptions to the warrant rule, one of which is voluntarily consent.  If the driver expressly consents to a breath or chemical test, the officer is not required to have a warrant.

Arizona courts have held that if a person was coerced by the officer to take the DUI test then their consent is not voluntary (State of Arizona v. Valenzuela, 2016).  An involuntary consent does not relieve police of the requirement of obtaining a warrant.

Arizona’s Unconscious Clause permissible only with consent, warrant, or case-specific exigent circumstances; What happens when your rights are violated

In Arizona police are permitted to request a warrantless, non-consensual blood draw, from a DUI suspect who is unconscious under A.R.S. §28- 1321.

The blood draw may be unconstitutional if an individual’s rights are violated in the process.

Recently, the Arizona Supreme Court ruled that the unconscious clause is permissible only when invoked non-routinely, under exigent circumstances that are case-specific.

4 Things Arizona Supreme Court Needs to Admit Results

Under the Fourth Amendment of the U.S. Constitution, a person has the right to be protected from unlawful searches and seizures.

This protection extends to a DUI blood test.  Consequently, police need a suspect’s consent or a search warrant to obtain a blood sample for a DUI investigation.

Without the person’s consent or a search warrant, it is unlawful for the police to collect a DUI blood sample.

Voluntariness VS. Submission to Lawful Assertion by Authority

In the recent ruling the Arizona Supreme Court considered a Fourth Amendment issue and Arizona’s implied consent law in DUI case.

The cases centered around two primary issues.  The first was whether or not  consent to a warrantless search to conduct DUI breath and blood tests were voluntary, after suspect agreed to submit to them only after the officer instructed him repeatedly about the law.

The next question for the court was whether or not the advisement by the police officer was given in good faith when the officer believed that his conduct was lawful and not in violation of the suspect’s 4th Amendment rights.

This article provides a case overview, legal principles that applied, and the additional related resource information:

  • Impact of Ruling on Arizona Drivers;
  • Good Faith Exception to the Exclusionary Rule;
  • Arizona Courts on what Constitutes Voluntary Consent to Search;
  • Answers to the question surrounding “Should I consent to a DUI Test in Arizona?”;
  • 10 Common Defenses for DUI Charges in Arizona

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Impact of Appeals Court Ruling on Arizona Drivers

Your Guide to understanding the DUI blood test with medical treatment warrant exception.

A DUI blood test taken by Police for investigating impairment is considered a search and seizure, protected by our 4th Amendment rights.

This means that to obtain DUI blood or chemical evidence police would need either consent; or a warrant to order a DUI blood or chemical test.

There are exceptions to the requirement of a warrant. One of these exceptions under Arizona Law is DUI blood test or testing incidental to medical treatment.

Police can request a blood or chemical test be taken for criminal investigation reasons incidental to Medical Treatment.

This exception is often used following an accident, when the police suspect the driver may have been impaired due to alcohol or drugs.

If the police have probable cause, they can bypass a warrant, and request a DUI blood or chemical test from the medical provider treating the driver.

Under A.R.S. section 28-1388(E), if an Arizona police officer has probable cause to believe someone has violated the statute that prohibits driving under the influence (A.R.S. S 28-1381), and blood or another bodily substance is taken from that person, and enough of the sample that is sufficient for analysis will be provided to a police officer if requested for law enforcement objectives.

However, a DUI blood test cannot be requested by police if the suspect has expressly rejected medical care.

Precedent case rulings on this issue have held that if the treatment is not obtained voluntarily, than neither was the DUI blood test.

The scope of this exception was the subject of a recent Arizona appellate decision which we will discuss in this article.

                            DUI Testing with Medical Treatment in absence of a Warrant

[Arizona Court of Appeals Division 1 – No. 1 CA-CR 12-0780 10-20-15]

In this case, the defendant appealed from convictions for reckless manslaughter, endangerment, and possession of narcotic drugs. The defendant argued that the court shouldn’t have denied his motion to suppress his blood test results, which were secured for law enforcement objectives under A.R.S. section 28-1388(E).

The case arose when the defendant hurt four people and killed a pedestrian in a head-on collision while speeding in a residential area early one evening. Hospital personnel took blood from him, and the blood test results showed he was high on meth and heroin at the time of the crash. Witnesses later gave testimony about his erratic driving and related conduct.

The defendant was charged with second-degree murder, possession, or use of narcotics, and four counts of endangerment. All of these are felony counts.  A motion to suppress the blood test evidence was filed by his defense, on the grounds that it was obtained without a warrant, and that he had expressly refused medical care at the time.

At the hearing on the motion to suppress, the defendant did not testify, but the court heard testimony from six witnesses. The witnesses, who were police officers and paramedics, testified that a nurse was tending to the defendant when they arrived. He was flailing and screaming and wouldn’t answer questions. One officer had been an EMT before becoming a police officer and testified that the defendant’s speech was slurred and that she couldn’t understand him in his delirium. Another officer saw syringes and an uncapped needle inside the car.

The defendant aggressively pushed away the paramedics and tried to hit them with a closed fist. However, the paramedics testified that due to the severity of his injuries, they needed a doctor’s clearance to not take him to the hospital, and they couldn’t get that. They effectively transported him against his will. He continued to be aggressive in the ambulance. Another officer said his behavior was consistent with someone drunk or high.

At the hearing for the motion to suppress, the lower court found that while it was possible to view the defendant’s conduct as a rejection of medical care, it wasn’t enough to count as a clear, unambiguous rejection of medical treatment. Accordingly, the lower court denied the motion to suppress the blood test.

The jury found the defendant guilty, and he was sentenced to 15 years for the manslaughter, as well as three years of imprisonment on each of the other convictions. He appealed.

The appellate court explained that a blood draw is considered a search under the Fourth Amendment. There are three constitutionally permissible ways in which police can get a blood sample: (1) by showing probable cause and getting a warrant, (2) express or implied consent, and (3) the exception provided by A.R.S. section 28-1388(E) that allows a police officer with probable cause to take part of a blood sample taken for another reason. However, the third way cannot be used if someone unambiguously, clearly, and expressly exercises their constitutional right to refuse medical treatment.

The issues before the appellate court were (1) whether the State had probable cause to believe there was a violation of A.R.S. S 28-1381, and (2) whether there was an express refusal of medical treatment. The appellate court found that the testimony of the officers showed there was probable cause. It found that there was no evidence to show the police asked that the defendant be taken to the hospital. There were also no oral statements made by the defendant specifically asking not to get medical assistance. The conviction was affirmed.

Updated March 13, 2017 

On February 1, 2017 the Arizona Supreme Court remanded the Maricopa County Superior court decision, and vacated the Appeals Court decision.

The Arizona Supreme Court held that the prosecution is required to prove that the defendant provided an express or implied consent to medical treatment.   If the defendant was unable to verbalize or otherwise express their consent, the state must prove that paramedics did not act against the suspect’s right to direct their own medical treatment.

The Court held that the evidence of record did not clearly or conclusively show that the suspect was capable or in a state of mind to direct his own medical treatment.   Further the the record did not show that the EMTs acted within the or against the rights of the suspect to make a decision about his medical care.

As a result the Court remanded for continuance of proceedings to the trial court to make the determination of whether or not police obtained the blood sample legally, based on specified standards.  These standards included 1) probable cause of DUI; 2) exigent circumstances; 3) blood draw was for a medical purpose; and 4) the paramedics did not violate the right of the suspect to make the decision regarding whether or not to consent to the medical treatment.

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Arizona V. Cooperman: DUI Partition Ratio relevant, competent evidence to show lack of DUI Impairment. Blood Alcohol Content (BAC) refers to the concentration of alcohol in the blood that can currently be measured either by a DUI blood test or a breath test. Interestingly, however, the results of a breathalyzer test for DUI may not always be the same as the results from a blood test. This may be the case even if the blood and breath are tested at the same time.

Partition Ratio in DUI Breathalyzer Tests

Breathalyzer tests produce a numerical score, only by mathematically converting the breath sample to a Blood Alcohol Concentration level. This conversion process is known as the “partition ratio” when the conversion factor is used. The conversion is considered problematic by some because it is not necessarily reflective of the actual partition ratio for an individual; actual partition ratios for individuals can vary. Factors that may cause the ratios to vary include but are not limited to body temperature, medical conditions and gender. This means a breathalyzer test for an individual may not accurately translate to a blood alcohol concentration level indicative of impairment.

Case Background: State of Arizona v. Cooperman
In a recent case, the Arizona Supreme Court addressed whether partition ratio evidence could be admitted in a DUI case where (1) the state chose to bring in breath test results to prove a defendant had a .08 percent or more BAC within two hours of driving, and (2) evidence related to how much partition ratios varied in the population was relevant to the defendant’s level of impairment. The defendant here wanted to show how the partition ratio varies in the general population in order to introduce doubt as to whether the results of the breath test showed impairment.
In this case, a motorist charged with one count of driving while “impaired to the slightest degree” in violation of A.R.S. 28-1381 (A) 1; and the other was for having an alcohol concentration of .08 percent or more within two hours of driving in violation of A.R.S. 28-1381 (A) 2.

The Prosecution generally attempts to prove beyond a reasonable doubt that the latter charge (.08 percent BAC) by presenting a jury with evidence of a defendant’s blood alcohol content and establishing a DUI test sample was taken within two hours of the defendant driving. When a person’s BAC is .08 percent or higher, the presumption is that a person is under the influence, in violation of Arizona’s legal limit. However, to have a level below the .08 percent BAC does not however, create a presumption. If the officer had probable cause to believe that a motorist’s was still impaired, even though their BAC was below .08 percent, they may bring charges in violation of “impaired to the slightest degree”. The impairment, however, cannot be presumed, and must be decided in connection with other probable cause evidence.

The prosecution in this case attempted to prevent the defendant from submitting evidence that showed the partition ratio used to convert the breath reading to a blood reading was variable, meaning inconsistent, or liable to change. The prosecution argued that it planned only to introduce the breath test results for proof that the defendant’s BAC exceeded .08 percent; but not to prove the first charge of “impairment to the slightest degree”. Since the prosecution was not going to introduce the breath test for the impairment to the slightest degree charge, they argued the defendant could not present the partition ratios related to that breath test to cast doubt on whether or not the defendant was impaired at all.

Experts for both parties testified regarding the partition ratio. The defendant again tried to introduce exculpatory evidence of the partition ratio to that would cast doubt on whether or not he was impaired to the slightest degree. The State argued the defendant’s evidence was irrelevant and had the potential create unfair prejudice. The court ruled that partition ratio evidence was in fact relevant whenever breath test results are brought forward by the State. The court of appeals affirmed this ruling. The State then appealed to the Arizona Supreme Court.


Arizona Supreme Court Analysis

The Arizona Supreme Court held that evidence is relevant where it can make a material fact in a case more or less probable. If evidence is relevant, it is permitted at trial, unless there is specific rule or provision in the law that prohibits it. In this case, the State was required to prove that the defendant was impaired because he drank alcohol. Therefore evidence of his impairment was relevant.

The AZ Supreme Court recognized the strong correlation between Blood Alcohol Content levels and intoxication. The prosecutors had argued that they had the unilateral ability to invoke the presumption that the defendant was under the influence and the partition evidence was irrelevant because they chose not to invoke the presumption of impairment to the slightest degree.

The Arizona Supreme Court disagreed with this approach by the prosecution. They held that there is nothing that precludes a DUI defendant from presenting partition ratio evidence to show he was not impaired in an impairment case. In fact, they cited specific Arizona Law, A.R.S. 28-1381(H) which specifically provides that any “competent evidence” on the issue of the question of the defendant’s impairment in DUI charges brought against them.

Conclusions

In conclusion the Arizona Supreme Court cited Sandstrom v. Montana, 442 U.S. 510, 524 (1979). Which holds the need to satisfy constitutional requirement presumptions in criminal cases must be rebuttable, enabling either side to provide evidence or argument that challenges or opposes the presumption. Thereby The Arizona Supreme Court affirmed decisions made by all previous courts, Municipal, Superior, and Appeals Court of Arizona, which was to allow the exculpatory evidence regarding partition ratio variability to be admitted to show the defendant’s lack of impairment.

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Why Missouri v. McNeely won’t have much impact in Maricopa CountyA recent U.S. Supreme Court decision may not change Arizona DUI law, but it may bring the rest of the nation more in line with Arizona’s policies.

Phoenix AZ court’s Search Warrant Center is available 24 hours a day, 7 days a week for police to obtain a warrant via “eSearch”. According to Phoenix Police, an officer can now obtain a search warrant within minutes. So the fact that the body’s Blood Alcohol Content (BAC) levels naturally decrease over time should not compel police, to bypass a search warrant. This is because the BAC levels take hours to decline, and will not be reduced drastically within 10 minutes.

Recently, the Supreme Court ruled 8-1 that police must obtain a warrant before forcing someone suspected of drunk driving to take a blood test. The US Supreme Court’s decision was that the mere fact that the body reduces BAC levels over time, is in and of itself not an “exigent” circumstance, and that each case should be decided based on it’s own set of facts.

5 reasons police conduct Preliminary Breath Tests

Arizona is one of a majority of states with Preliminary Breath Test (PBT) Laws.

The PBT is a small mobile device used to establish the presence of alcohol in a person’s system. The PBT is intended to be used as an early detection or screening tool by police. Arizona does not allow a PBT to be admitted as evidence in court against a person accused of DUI, because the machines historically are not considered accurate in measuring exact Blood Alcohol Content (BAC) Levels. In addition, PBT units are not calibrated or routinely maintained like the official Breath Tests Machines.

Arizona Portable Breath Test (PBT) Law

Under A.R.S. 28 § 1322 Preliminary Breath Test law a police officer who has reasonable suspicion to believe a person is driving under the influence of drugs or alcohol has authority to request that a person submit to a preliminary breath test.

Under this law, the officer may also require the person to submit to further testing
pursuant to the Implied Consent Law A.R.S. 28 § 1321. This includes DUI blood, breath, urine testing.

5 reasons PBTs are commonly used in Arizona

The National Highway Safety Administration recognizes that although the PBT is useful, it is not admissible as sole evidence to determine BAC; but is generally reliable in determining if any alcohol at all is present in a person’s system. Arizona courts do consider PBT evidence to be admissible in court as evidence against a defendant facing DUI charges. Below the police may likely choose a PBT in a DUI field investigation:

• To determine or rule out DUI influence of alcohol v. drugs;
• Drivers who may have a high alcohol tolerance level, and can perform field sobriety tests or other tasks to a greater degree than those with lower tolerance levels;
• To detect if an underage 21 person is under the influence of any alcohol in violation of the state’s Zero Tolerance law;
• As a preliminary DUI screening test only; and if positive, will be followed up with an Official Breath Test Machine.
• At the scene of a DUI collision where the driver is suspected of DUI, but has been injured and is unable to perform Standard Field Sobriety Tests (FSTs).

Criminal Defense for DUI Chandler AZ

Arizona laws and penalties are some of the toughest in the country. If you have been arrested for any type of DUI you should always consult a qualified criminal attorney to discuss your charges. You should do this before you appear in court or plead guilty to the charges. You have the constitutional right to defend your charges, and this is done by pleading not guilty and retaining proper legal representation. There may be defenses that you are not aware of that if used, may lead to a dismissal of charges, sentencing, or other favorable outcome in your case.

Additional Resources:

Arizona State Legislature – Portable Breath Test Laws A.R.S. 28 § 1322

Arizona State Legislature – Implied Consent Laws A.R.S. 28 § 1321

Arizona Department of State – Public Safety – Determining Alcohol Concentration

Arizona Governor’s Office of Highway Safety – DUI laws

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In Carillo v. Houser Maricopa County, the Arizona Supreme Court held that the Implied Consent Law, A.R.S. § 28-1321 did not authorize police to conduct DUI blood testing without a warrant. The exception is if the suspect expressly gives their consent for officers to administer the chemical test.
It is not enough for a suspect to object to the blood or urine test. They must expressly refuse, or consent to it. Failure of a person to expressly agree, or to consent to completing the chemical test is considered a refusal.

If a driver refuses a DUI breath test the police may obtain a warrant to collect a blood or urine sample. In order to obtain a warrant the police must have “probable cause” to believe that a motorist was driving impaired under the influence of drugs or alcohol.
If a driver refuses to participate in the chemical testing, there are civil and criminal consequences. A refusal of a DUI chemical testing with a valid warrant will result in a 12 month suspension of the motorist’s driver’s license. The police may proceed with a DUI arrest with probable cause for DUI charges.

Arizona Implied Consent Law

Under the Implied Consent Law A.R.S. § 28-1321 a motorist driving in Arizona inherently gives their consent to DUI breath, blood or urine test if requested by police to determine if they are driving under the influence of alcohol or drugs.
The Police Officer who makes the DUI stop decides what type of test should be administered. The officer must have cause to believe that the person was driving or in actual physical control of a motor vehicle either alcohol or drugs.

Implied Consent Law – Underage 21 Drinking

Arizona is a “Zero Tolerance” state with regard to underage 21 drinking. This means an underage drinker may be arrested for being under the influence of any alcohol in their blood stream. The Implied Consent Law A.R.S. § 28-1321 also gives authority to police in Arizona to administer chemical testing to a person under the age of 21 years of age. They police may administer the test to determine if the person under age 21 has in their body, whether or not they were driving or in actual physical control of a vehicle.

DUI Lawyer Tempe AZ – Defense

If you were arrested for DUI based on breath or blood testing, there may defenses you are not aware of that can lead to suppression of evidence or even a dismissal of charges. An arrest is not a conviction. Anyone arrested has a constitutional right to defend their charges. In order to make sure your rights are protected, and to defend your charges, you should always retain the services of a qualified criminal defense attorney.

Additional Resources:

Arizona Legislature Implied Consent Law

Arizona Legislature DUI law

Arizona Supreme Court JOSE CARRILLO v. HON. ROBERT HOUSER Ref: CV-09-0285-PR
Arizona Department of Transportation

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