Warrants for Bodily Fluids (Yes, there is such a thing)

Posted by Craig Penrod | Sep 09, 2013 | 0 Comments

While the use of warrants and needles may be news in Illinois for those suspected of DUI, the procedure has been around for years in Arizona.

DuPage County targets DUI suspects who refuse breathalyzer over Labor Day weekend

By Associated Press

WHEATON, Ill. (AP) — DuPage County has a secret weapon this weekend for DUI suspects who refuse a breathalyzer — a needle.

State's Attorney Robert Berlin says a search warrant will be sought for anyone arrested for driving under the influence who refuses the breathalyzer.

Suspects will be taken to a central location, where an assistant state's attorney and a judge will be on duty through the weekend.

Once a warrant is issued, licensed medical personnel will be on hand to draw blood to be tested for blood-alcohol content.

Berlin says a person's blood could be drawn as soon as an hour after arrest.

He says the “No Refusal Weekend” is aimed at fighting the increasing number of drivers who refuse the test.

An estimated 25 percent of DUI suspects nationwide refuse a breathalyzer.

Many people believe that if you refuse to submit to a test of your breath or blood, the State has no evidence against you and you can't be convicted of driving under the influence of alcohol or drugs.  Think again.

Under A.R.S. § 28-1321, a person who operates a motor vehicle in the State of Arizona gives consent to a test or tests of the person's blood, breath, urine or other bodily substance for the purpose of determining alcohol concentration or drug content.  A failure to expressly agree to the test or successfully complete the test is deemed a refusal.  And here is where the warrant comes in.  After you have been advised that your license or permit to drive will be suspended for 12 months for a first refusal, or 2 years for a second or subsequent refusal within a period of 84 months (yes, even if you have an out-of-state drivers license, this does apply to you), it takes just one call to the judge or JP on duty to have a warrant issued.  While in Illinois, they may have a State's Attorney and judge on duty at a central location, our judge or JP can be comfortably tucked in bed waiting for that call.  Once the officer has stated that he has probable cause to believe that alcohol or drugs may be present in your blood or bodily fluids and that you were driving or in actual physical control of a vehicle at the time, the judge will give the OK and out comes the needle.   Fight or flight?  Neither is suggested because, as barbaric as it sounds,  if you do resist you can be held in place – either by straps or multiple burly officers.  Now, in addition to that 12 or 24-month suspension of your driving privileges which you're facing for refusal, the officer has gotten the evidence he needs to proceed.

In Illinois, “[O]nce a warrant is issued, ‘licensed medical personnel' will be on hand to draw blood to be tested for blood-alcohol content.”  Not so in Arizona.  All it takes is a week-long phlebotomy course at your local junior college and, voila!  Your arresting officer is now also your phlebotomist!  Yes, that doesn't make me feel too confident, but holding out for “licensed medical personnel” or the sterile environment of a hospital could get you suspended.

As a general rule in a first offense DUI case, it's prudent to submit to a chemical test since the police have the ability to obtain a blood sample anyway.

The Law Office of Craig W. Penrod has been involved in criminal and DUI defense for more than 20 years.  Contact the DUI lawyers at the Law Offices of Craig W. Penrod for a free initial legal consultation if you find yourself facing DUI or criminal charges.

About the Author

Craig Penrod

Craig W. Penrod was born and raised in Arizona and has practiced criminal defense for over 30 years. Mr. Penrod is a member of the State Bar of Arizona, Maricopa County Bar Association, State of Nevada Bar Association, American Bar Association, American Trial Lawyers Association, Arizona Trial Lawyers Association, Nevada Trial Lawyers Association, Arizona Attorneys for Criminal Justice and the National Association of Criminal Defense Lawyers.


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