June 8, Phoenix, AZ
Blood samples taken from motorists without their explicit on-the-spot consent can't be used to convict them of drunken driving, the Arizona Supreme Court ruled Monday.
The justices acknowledged Arizona has an "implied consent" law saying motorists agree to provide a sample of blood, breath or urine for testing if they are charged with driving under the influence of alcohol or drugs.
But Justice Scott Bales said police still need a warrant from a judge to draw blood without the driver's explicit approval.
Bales, writing for the unanimous court, said the "implied consent" law simply makes giving consent a condition of having an Arizona license. He said that allows motorists to refuse, with the understanding their licenses will be taken away, something that remains unchanged by this ruling.
Deputy Pima County Attorney Bruce Chalk said he does not think Monday's ruling will make it harder to convict suspected drunken drivers. Chalk said that if motorists balk, police still can obtain search warrants if they have probable cause to believe someone was driving while intoxicated.
As proof, they noted that the law spells out that someone who is dead or unconscious is presumed not to have withdrawn consent. Based on that, they said if blood can legally be taken from an unconscious person, it also can be taken from someone who is merely silent.
Bales, however, said that's not the way the law works - at least not with those who are, in fact, conscious.
He pointed out the law requires police to ask a motorist to submit to a test and to inform anyone who refuses that doing so will result in loss of license. Bales said the law says that if a person refuses to submit, the test "shall not be given . . . unless pursuant to a search warrant."
The court also rejected arguments that requiring specific consent each time a test is sought undermines the state's drunken-driving laws.
"The key purpose of the implied-consent law is to remove from Arizona highways those drivers who may be a menace to themselves and others because of intoxication," Bales wrote.
Finally, Bales said the statute does require someone who is arrested to "expressly agree" to being tested without a warrant. He said that means "in direct or unmistakable terms and not merely implied or left to inference."
Hmmm, let’s see if Arizona’s State’s Attorney will attempt to get this heard before the U.S. Supreme Court in light of its recent ruling that stands Miranda on its head.