Can You Refuse a Breathalyzer in Arizona? What Former Prosecutors Want You to Know
The quick answer is, yes, you can refuse a breathalyzer in Arizona, but refusing the chemical test requested after a DUI arrest triggers an automatic 12-month license suspension under A.R.S. § 28-1321 (2 years for a second refusal within 84 months). Police can still get a warrant for your blood, and you have 30 days to request a hearing to challenge the suspension.
5 Things to Know Before You Refuse a DUI Test in Arizona
- Implied consent applies after arrest. Driving in Arizona means you have consented to chemical testing once you have been arrested for DUI.
- Refusal costs more than failing. A first refusal means a 12-month suspension; a 0.08+ result is generally 90 days.
- Refusal doesn’t stop the case. Officers routinely obtain a blood warrant, and your refusal can become evidence at trial.
- The roadside test is different. A portable breath test before arrest and field sobriety tests are not the post-arrest test in implied consent.
- The 30-day clock starts immediately. Miss it, and the suspension becomes final.
From the former-prosecutor side of the table: If you refuse the chemical test, the prosecution will attempt to use that as evidence against you at trial. They will tell the jury you refused the test, which may create an inference of guilt in the jury’s mind. Additionally, the prosecutor may try to use any statements that accompanied your refusal. For example, if you said you did not want to take the test because you might be over the limit, the state will add that to their evidence of guilt.
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What Is Arizona’s Implied Consent Law?
Under A.R.S. § 28-1321, anyone who drives in Arizona consents to testing of their blood, breath, urine, or other bodily substance if they are arrested for DUI or actual physical control while impaired.
Implied consent is not unlimited police authority. In State v. Valenzuela (2016), the Arizona Supreme Court held that telling a driver “Arizona law requires you to submit” did not produce valid consent for a warrantless test. Officers still need actual consent, a warrant, or another legal basis.
Is a Roadside Breathalyzer the Same as the Test After Arrest?
No, and this can be confusing. Arizona DUI stops can involve three different tests:
TEST 1: Field sobriety tests (walk-and-turn, one-leg stand, HGN eye test)
This happens roadside, before arrest. Declining this test does not cause license suspension under implied consent.
TEST 2: Preliminary breath test (PBT, handheld device) A.R.S. § 28-1322
This is also taken roadside before an arrest and is not a refusal under A.R.S. § 28-1321.
TEST 3: Evidentiary chemical test (breath machine, blood, or urine)
This happens after an arrest, and the consequence of declining this test is a 12-month or 2-year suspension.
When people ask whether they can “refuse a breathalyzer,” the legal consequences depend on which breath test was requested and when.
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What Happens If You Refuse a Breathalyzer in Arizona?
If you refuse the post-arrest test, the officer must advise you of the consequences. If you still refuse:
- The officer takes your Arizona license and serves an order of suspension.
- You receive a temporary permit, and the suspension takes effect 30 days after service.
- MVD suspends your license for 12 months (first refusal) or 2 years (second refusal within 84 months).
Refusal doesn’t require the words “I refuse.” Failing to expressly agree, staying silent, or failing to complete the test may be a refusal.
This suspension is administrative. It happens whether or not you are ever convicted of DUI.
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Can Police Take Your Blood If You Refuse?
Often, yes. Refusing the designated test means the test won’t be given unless officers obtain a search warrant or another statutory exception applies, such as blood drawn by a hospital for medical treatment under A.R.S. § 28-1388(E). In Phoenix-area agencies, telephonic and electronic warrants can happen within minutes.
The practical result: many drivers who refuse end up with a blood result and a 12-month suspension.
Does Refusing a Breathalyzer Make a DUI Case Go Away?
No. Prosecutors can build a DUI case on officer observations, driving behavior, statements, field sobriety performance, body-cam and dash-cam footage, witnesses, and crash evidence.
Refusal can also become evidence in the criminal case, where prosecutors may argue it shows consciousness of guilt. That’s why the circumstances of the request (whether you were properly advised, whether you asked to speak with a lawyer, whether you understood the question) matter. This is also why hiring Grand Canyon Law Group for your DUI matters. Our founders are former prosecutors who know the ins and outs of how the state builds their case and how to dismantle it. Give our team a call today at 480-573-6441 to discuss your DUI case. We are available 24/7 and offer a free case evaluation.
Can You Talk to a Lawyer Before Deciding?
Arizona courts have recognized that a driver may ask to consult an attorney before deciding on testing, as long as the request doesn’t unreasonably delay the investigation.
The Administrative Consequences of Refusing vs. Taking the Test:
First Refusal: 12-month suspension
Second Refusal within 84 months: 2-year suspension
Test result 0.08+ (admin per se): 90-day suspension (often 30 days no driving + 60 restricted)
Commercial drivers / drivers under 21: Lower thresholds apply
These are license consequences only. Criminal DUI penalties are separate. Read more about DUI penalties in Arizona.
What Is an Arizona Implied Consent Hearing?
It’s a civil hearing before an administrative law judge that decides only whether your refusal suspension stands. Under A.R.S. § 28-1321(K), the issues surround whether:
- The officer had reasonable grounds to believe you were driving or in actual physical control while impaired (or were under 21 with alcohol in your system);
- You were arrested;
- You refused the test; and
- You were advised of the consequences of refusal.
A timely request stays the suspension until the hearing. Just as important, the officer testifies under oath, often for the first time in your case. That testimony can shape the criminal defense.
How Long Do You Have to Challenge a Refusal Suspension?
30 days. Your hearing request must be given to MVD within 30 days of the suspension notice. Miss it, and the suspension becomes final.
Don’t wait for your criminal case to resolve. The license case moves on its own clock.
Can You Get a Restricted License After a DUI Refusal?
Possibly. After a first refusal, you may qualify for a Special Ignition Interlock Restricted Driver License (SIIRDL) once you complete any MVD-ordered alcohol or drug screening. You will need a certified interlock device for the rest of the suspension.
Two important cautions:
- Applying waives your hearing. Accepting a SIIRDL means you accept the suspension and give up the right to challenge it. Talk to an attorney before applying.
- No SIIRDL for repeat refusals. It’s not available for a second refusal within 84 months.
What Should You Do After Refusing a Chemical Test in Arizona?
- Find your paperwork. Locate the order of suspension and temporary permit.
- Calendar the 30-day deadline. Count from the date you were served.
- Preserve evidence. Save receipts, texts, location data, witness names, and any relevant medical records. Note whether you asked for a lawyer.
- Do not apply for a SIIRDL yet. It waives your right to a hearing.
- Talk to an Arizona DUI attorney. A lawyer can evaluate the stop, the arrest, the refusal advisement, and details regarding the warrant. Call Grand Canyon Law Group for a free case evaluation 480-573-6441.
Frequently Asked Questions
Is it illegal to refuse a breathalyzer in Arizona?
Refusal isn’t a separate crime, but refusing the post-arrest chemical test triggers a 12-month license suspension (2 years for a second refusal within 84 months). A refusal can become evidence in your DUI case.
Can you refuse a field sobriety test in Arizona?
Yes. Field sobriety tests are not part of the implied consent statute, and declining them does not trigger a refusal suspension.
Can you refuse the portable breath test at the roadside?
The roadside PBT under A.R.S. § 28-1322 is separate from the post-arrest evidentiary test. Declining it is not a refusal under § 28-1321.
Can police get a warrant for my blood after I refuse?
Yes. Officers frequently, and often quickly, obtain a warrant for a blood draw after a refusal.
Is it better to refuse or take the breathalyzer in Arizona?
It depends on the facts. A refusal carries a longer suspension than a 0.08+ result, and it rarely prevents police from obtaining evidence. Every case is different, so speak with an attorney about your specific situation.
Is an MVD suspension the same as a DUI conviction?
No. MVD can suspend your license without any criminal conviction.
The Bottom Line
You can refuse a breathalyzer in Arizona, but refusal usually costs more than it saves: a 12-month suspension, a likely blood warrant, and evidence the prosecution can use against you. If you’ve already refused, the 30-day hearing deadline is the most urgent thing on your plate.
Grand Canyon Law Group’s founders are former prosecutors who know how DUI refusal cases are built, and how to take them apart. With offices in Phoenix, Mesa, and Tucson, we represent clients facing DUI charges and license suspensions across Arizona. Dedicated Criminal Defense. Your Future. Our Focus. Schedule a free consultation with our team now by calling 480-573-6441.
Legal Disclaimer: This article is for general information only and is not legal advice. Arizona DUI and license laws change, and outcomes depend on individual facts. Consult a qualified Arizona DUI attorney about your situation.
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