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Arizona’s Unique Approach: Police Roadside Blood Draws

Suppose you were recently arrested for DUI in Arizona.  Chances are police themselves  drew your blood,  either by consent, warrant, or force. 

What may be surprising to know is that in Arizona, unlike other states, here the police don’t put on the nitrile gloves, pull out a 21 gage needle from their police car, and draw your blood themselves right there on the roadside, often with you sitting in the back of a police cruiser, or in some cases,  a little folding soccer mom chair, that the police provide. Here in Arizona the police are deputized as “qualified” phlebotomists, through simply taking a 40  hour community college course. 

For this reason many of our clients when they see police wielding a 21 gage butterfly needle, and Cavi-wipes, and start poking around  their arms,  get a little  nervous and maybe politely query police actual qualifications to draw their blood on the roadside.  Some of our clients   may also  resist readily  and  unequivocally consenting to police drawing  their blood at the roadside.  

Consent

 In these cases police will read our clients a standard Arizona police   form  called Administrative Per Se/ Implied Consent Admonitions  that tells you that you are now  “required” to submit to a “chemical” test or tests of the officer’s “choosing,” in most cases a  blood test.  Police will admonish you that if you “refuse” to consent to a blood test,  “or do not successfully complete the test” Arizona MVD will suspend your driving privileges for “not less than one year.” Note that the officer himself will decide whether you sufficiently “consented.”

 If this has recently happened to you, you have just been subjected to Arizona’s draconian DUI  “Implied Consent” law. It is at bottom a purely legal fiction that goes like this: You by driving in Arizona, although you might not  know it, have already impliedly “consented” to providing a blood sample under Arizona DUI law if an  officer believes reasonably that you are likely impaired to at least the slightest degree by drugs or alcohol.

The fact that you never heard of this law doesn’t matter. The fact that your actual free consent is not necessary matters little. The fact that you might question an officer’s qualifications to draw your blood right there at the roadside, can be deemed a “refusal” might be surprising.  

What’s worse is what police don’t tell you: That if you don’t “consent” sufficiently, unreasonably delay in consenting, or actually refuse, police will not only serve you with a one year order of suspension, but that they will simply email a judge and obtain  “electronic warrant” which takes only a few minutes.  They, the police, will then draw your blood anyway by any means necessary including strapping you down and jabbing a police needle in your arm while you scream. 

Invoking Your Right to Counsel

But there are two things you can do in this situation.   First, when confronted with the specter of an   implied “consent” blood draw you can ask to speak with a lawyer before the test

A note about Miranda warnings: Sometimes people think that once police advise you of your Miranda warnings, and you agree to answer a few questions, you have waived your right to speak with a lawyer forevermore . That’s not true.

Under Arizona law, in fact,  you’ve got the distinct right to speak with an attorney as soon after arrest as possible, even if you initially waived your Miranda rights.  But you’ve got to know to ask.  And actually ask. That’s what this blog article is for.

The law: Arizona DUI law provides where police have arrested you for DUI, if you ask, police must grant you reasonable time (usually twenty minutes), and some privacy, and  a real  and timely  opportunity to call an attorney of your choice, even a relative, even an attorney who lives far away,  in another state.

If you do so  request to speak with an attorney, and police don’t reasonably accommodate your request, it may be that your case could be in some circumstances completely dismissed.

This happens more than you might think.

Independent Testing

Second, in addition to your right to consult with an attorney prior to taking a blood test, you also have  the separate due process right to obtain at your own expense your own independent blood test, done at the medical facility of your choice, after the police blood test. 

Courts recognize this as a fundamental right  to  gather  your own potentially exculpatory evidence, independent of the police.  Courts hold that because DUI blood evidence is what they call  “effervescent” – meaning that ethyl alcohol bubbles out of  your blood over time– police must assiduously and timely honor your right to an independent blood test.  If you are being booked into jail, this means that they must take you to a nearby medical facility of your choice before taking you to jail. But again only if you ask. 

In most cases police vitiate that right to an independent test by  specifically advising you of your right to both an independent test, and your separate opportunity  to retest one of their blood samples.  And they usually have you sign a form that you have been so advised. But sometimes police  fail   to advise of either your right to an independent blood test or your separate right to re-test one of the police blood  samples. Where, police completely fail to so advise, or to unreasonably interfere with your obtaining an independent test,  there can be a serious problem for the State in their case against you, which could, albeit on occasion,  result in dismissal of all charges.

Conclusion

In sum, in Arizona police themselves can legally draw your blood at the roadside. They extract your “consent” to them drawing your blood  by  threatening to lawfully suspend your driver’s license for a year if you don’t comply. 

  But there’s two things you can do in such situation. First, you’ve got the right to speak with an attorney of your choice before taking the police blood test, if you know to ask. Second, you’ve got  the separate right to go get an independent test, after the police blood test. If police unreasonably interfere with either of these rights it may be that your case could be dismissed.