Ranked as some of the toughest in the Nation, Arizona’s DUI laws, just got a little tougher. In State v. Valenzuela 2015 WL 3391420 (May 26, 2015),the Arizona Court of Appeals in a divided opinion, upheld the use of the controversial Arizona “Admin Per Se/Implied Consent” form to extract a “consensual” agreement to draw blood during a DUI investigation.

“Implied Consent”

Arizona law contains the legal fiction that anyone driving an automobile within the state of Arizona (even on private property) has “consented” to having their blood drawn, if an officer has “reason to believe” the person is “above the legal limit” (.08 BAC). This is true for people who don’t know about the law and have never actually consented. This law allows the police to obtain blood without a warrant.

“Admin Per Se”

To be sure that a person “consents” to the blood draw, Arizona law also provides that the penalty for refusing to “consent” is a one year suspension of driving privileges. The police read each DUI suspect a form that says so( these are called the “admonishments.”)

The Form

But the “admin per se/implied consent” form that Arizona police use, goes even further. Rather than simply explaining the law of refusal, which is contained in the statutes, the form tells the defendant at least four times that she is “required to submit to the …test(s).” This is so even though the law itself, the statute, never actually specifically says that a person is “required” to submit to the tests. Rather she has a choice.

Valenzuela

In State v. Valenzuela, the defendant challenged the use of this police form as overreaching and inaccurate, resulting in coercion. The form, according to Valenzuela did not merely present him with the unpleasant but permissible choice of losing his license, but rather expressly and repeatedly emphasized—no less than four times—that he was “required” to submit to the intrusive blood draw as a warrantless search. This was contrary to law and coerced him to take the test.

However, the court in Valenzuela, disagreed, holding that Arizona police “admin per se/implied consent form itself is not “coercive” even though it goes beyond the law.

Where do we go from Here?

The Court left open the question, however, of particular instances of coercion where the aggressive police form combined with some sort of police action, such as denying the defendant the right to consult with an attorney, could result in coercion. But that will be handled on a case by case basis.

I suspect that this decision may wend its way to the State Supreme Court and be revisited there, as it affects so many thousands of cases in Arizona. Once again, Arizona’s DUI laws prove to be enduringly and surprisingly punitive. –MH