Phoenix Criminal Defense Attorney
Let a Former Prosecutor Fight for You You Don't Have to Face Tough Charges Alone

Should I take the breath test?

If you're being investigated for a DUI in Scottsdale, the police will typically ask you to submit to a pre-arrest breath test using a hand held breath testing device which is referred to as a preliminary breath test (PBT). There are a few important issues related to the PBT that need to be considered before one decides whether to submit to this test.

First, although the officer has no obligation to tell you, the PBT is completely voluntary; there is no requirement that you submit to a preliminary breath test. Moreover if you refuse to take the breath test the officer cannot suspend your driver's license (as opposed to the post-arrest chemical test which can result in a suspension and the issuance of a search warrant if you refuse).

Secondly, although the results from a PBT may not be used in court, because the instrument used by the police is not considered accurate or reliable enough, it may nevertheless be used by the officer to help him develop probable cause to place you under arrest for DUI. Once the officer makes a properly founded DUI arrest he at that point is able to essentially require you to submit to a blood test by invoking Arizona's implied consent law which will result in a 12 month driver's license suspension unless you submit to the test.

Third, PBT results are commonly used by the police in Scottsdale when conducting a DUI investigation to determine which charges to file against you. In Scottsdale charges of extreme DUI are filed whenever a person's blood alcohol concentration is .50 or greater. Because Scottsdale relies on blood testing to establish a person's alcohol level in court and that process can typically take several weeks to complete, the PBT is practically speaking the only opportunity the DUI officer has to determine what the person's BAC is prior to issuing their citation.

If no PBT is available it is often impossible for the officer to include extreme DUI charges on the citation although the Scottsdale city prosecutor can easily add these charges later on after the blood test has been completed, sometime they neglect to do so and on other occasions you may have the ability to resolve your case before that is accomplished. Finally, under Arizona law the police have the authority to impound your vehicle for 30 days simply because you were arrested for an extreme DUI unless the arresting officer knows what your BAC is then they cannot charge you with extreme DUI and therefore are unable to impound your vehicle.

By refusing the PBT, the police and the prosecutor will, in most instances, be unable to have any basis to charge you with extreme DUI until well after your vehicle has already been released back to you and you can effectively avoid the 30-day impound.

Unless your vehicle is also registered in the name of a third party, it is usually very difficult if not impossible to get your car back prior to the expiration of those 30 days. This process can also be very costly in terms of the towing and storage fees that are assessed and must be paid before the vehicle will be released back to you.

If you have any questions about preliminary breath testing or extreme DUI contact Scottsdale DUI attorney Joshua S. Davidson for a complimentary consultation.