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Can the police trick you into a breathalyzer test?

Posted on June 13, 2019 in Uncategorized

Police are supposed to have reasonable suspicion before pulling a driver over for possible DUI in Arizona. But coercing a breath test out of the driver AFTER the stop has been made may be taking probable cause a little too far, at least that’s what an Arizona Appeals Court has decided. During the case, Angel Soza alleged that the police had tricked himinto consenting to a breath test during a stop, and the courts agreed with him. At least partially. While the ruling stated that the illegally coerced breath test could not be used as evidence, they found that the officers in question should not be charged with improper conduct. 


The Arizona statute

The ruling dealt with an Arizona statute that assumes motorists are automatically giving consent to a breath test if they are pulled over for suspicion of driving under the influence. The one caveat is that the consent can be withdrawn by the party pulled over. If refused, the test cannot be given and the motorist will be subject to other automatic penalties.Both the US Supreme Court and Arizona high courts concur that this means the motorist must take the test voluntarily. The ruling went on to state that resistance to taking the test is not the only way to remove consent and that consent must be expressed by the motorist before consent can be deemed given. 

The stop

The case before the court involved Soza being stopped for suspected impaired driving and being told that a breath test was required under the Arizona statute. Soza complied and was charged with DUI. The court ruled that since the police officers did not have a warrant or consent of the motorist that the breath test administration was considered to be aviolation of the Arizona DUI statute. 

What does this mean for the Arizona statute?

This court ruling is now the second time that the implied-consent law has been sanctioned by applying what is known as the exclusionary rule. In the opinion, it was these cases that led to the judges making their decision. So does this mean that the implied-consent rule is all but dead in the state? If verbal consent is required, the statute seems to nolonger apply.

What can constitute coercion?

When presented with the terms coercion, it often evokes an idea of being pressured into giving an answer by someone preying on someone’s weakness, or lack of knowledge. But this is hardly the case in situations that were mentioned above. When a police officer suspects that someone is driving under the influence it is the job of the officer making thetraffic stop to obtain blood, breath, or urine tests, to be able to properly complete their DUI investigation. Since the evidence is gathered to be used against you in a court case, there are specific laws surrounding how an officer may obtain those samples. 

According to the Arizona statue, you are legally required to provide these samples when requested by the officer, who can order one or all of the tests to properly make their case. The statue is focused on driving in the state being a privilege and with that privilege comes the responsibility of submitting to those tests if suspected of breaking the law.The statue does also allow a person to refuse to be tested, by simply saying they do not wish to submit to the test and the officer will have to respect that refusal. 

Coercion can take many forms when trying to get a suspect to submit to a test. Most often, coercion can be linked to a fear of jail with an officer implying that taking the test will allow them to go home otherwise, they could end up in jail. Yet, in this case, there was no definitive coercive tactic. 

What to do if you are pulled over for a suspected DUI?

The most important thing to know when pulled over for a DUI is your rights and responsibilities under state law. The absolute best advice is to call your attorney as quickly as possible to find out what your best options are which is why we answer the phone 24/7/365.

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