Admin Per Se or Implied Consent Affidavit

What do the words "admin per se" and "implied consent mean"?

Implied Consent

In Arizona, when you drive a car you consent to being tested for the presence of alcohol or drugs in your body. This consent is "implied" because there is no agreement you sign or anything - there is just a law that says if you drive a car in Arizona, then you consent to the testing of your "blood, breath, urine or other bodily substance for the purpose of determining alcohol concentration or drug content". 

Of course, the police theoretically have to have some reasonable grounds to suspect you were operating a motor vehicle while "under the influence of intoxicating liquor or drugs" before testing you.

Admin per se

"Admin" is short for "Administrative" and "Per se" is a latin phrase meaning "by itself". So we have "Administrative by itself". If you are issued a ticket for a DUI, you will likely be served with an Admin Per Se/Implied Consent Affidavit. 15 days after you are served with this document, your driving privileges will be automatically suspended by the MVD. In other words, the MVD will, by itself, administratively suspend your driving privileges.

What does an admin per se/implied consent affidavit mean for a driver?

Below is an example of an admin per se/implied consent affidavit.

Admin per se implied consent affidavit front
Admin per se implied consent affidavit back

When a driver is ticketed for a DUI, the police will often, but not always, serve an admin per se/implied consent affidavit like that shown above on the driver. There are two types of  license suspension that can result from an Admin Per Se affidavit:

1. 1-year suspension pursuant to A.R.S. 28-1321

If a driver refuses a blood or breath test, the driver's driving privileges will be suspended for one year.

A.R.S. 28-1321 covers what will happen to a driver who refuses a breath or blood test. A driver can refuse a preliminary breath test (PBT), one of the little hand-held units that police sometimes carry, but it is generally a bad idea to refuse a blood test or breath test on an Intoxilyzer 8000 (often referred to as an evidentiary breath test). The concept of "implied consent" was described above, and when a person drives, they are impliedly consenting to a blood or breath test if the police have a reason to believe the person was driving a motor vehicle while under the influence of drugs or alcohol. If a driver refuses such a test, the driver's driving privileges will be suspended for a year.

AND the driver will still probably get their blood drawn and tested, even if they refuse. If the traffic stop is at the point where the police want to test the driver for alcohol or drugs, that means the police have reason to believe the person has drugs or alcohol in their body. This also means that when the person refuses the tests, the police will simply go get a warrant for the test and then take the driver's blood and test it against their will.

So if you get pulled over under suspicion of DUI, you should probably consent to a blood test or evidentiary breath test.

If a driver gets the one-year suspension, there may still be the opportunity for a restricted license. After serving 90 consecutive days of the suspension and completing any required drug or alcohol screening, the driver may apply for a special ignition interlock restricted driver license pursuant to A.R.S. 28-1401. This will allow the driver to travel to and from work and school, as well as some other limited places.

2. 90-day suspension pursuant to A.R.S. 28-1385

A driver receives an admin per se affidavit because a police officer had reason to believe the driver was impaired. A.R.S. 28-1385 provides that a person's privilege to drive will be suspended for 90 days, beginning 15 days after the service of the affidavit. The affidavit is served when the officer hands it to the driver.

Options After Being Served With An Admin Per Se Affidavit

If the police test a driver's BAC with a breath test, the driver will probably get served with the Affidavit right then. The police will also serve it immediately if the driver refuses breath or blood testing. If the police draw blood, there may be a delay in serving the Affidavit while the police await the results of the blood test. Once a driver is served with an Implied Consent Affidavit though, the clock starts. Two choices exist:

1. Do Nothing.

If the driver does nothing, the driver's driving privileges will be suspended automatically in 15 days. If the suspension is because the blood or breath test showed alcohol in the driver's body, then the suspension will be for 90 days. After 30 days, the MVD will automatically mail a restricted license to the driver, so long as the driver has completed an alcohol screening.

2. Request A Hearing.

A driver has 15 days to request a hearing. If the driver wants a hearing, the Arizona Department of Transportation Hearing Office must receive the driver's written request within 15 days of service of the Affidavit. It is therefore a good idea to submit a hearing request at least a few days before the 15 days runs. If a hearing is timely requested, this delays the suspension until after the hearing.

If a driver requests a hearing and the driver is later suspended, either because the driver stipulates to a suspension or because the driver loses at the hearing, a restricted license will not automatically be issued after 30 days of suspension. The driver will need to go to an MVD office in person with proof that they completed alcohol screening in order to obtain a restricted license after 30 days.

More About Admin Per Se/Implied Consent Hearings

Why request a hearing?
  1. It keeps the driver in control of the process. Instead of just letting the suspension go into effect automatically 15 days after service, requesting a hearing puts the driver in control of the suspension timeline. Once a hearing is requested, the suspension will not occur until sometime after the hearing date. This gives the driver time to plan for not being able to drive.
  2. It gives the driver time to figure out what is going on. The driver can begin investigating their case, get an independent blood test, and so on.
  3. The hearing can be an opportunity to cross exam the police officer under oath in advance of a criminal trial.
Sometimes, after requesting a hearing, a driver may stipulate to a suspension and vacate the hearing.

Shortly after a driver requests a hearing, they will receive a letter back from ADOT with a hearing date. It will probably be set a couple months after the initial hearing request. Anytime before the hearing, the driver can withdraw their request for a hearing and stipulate to a suspension. One reason a driver might do this is because when the request for a hearing is withdrawn, the driver can then pick the date the suspension begins. That date must be within 45 days after the date of the hearing.

A driver may not want to risk WINNING the Admin Per Se Hearing

If a driver wins the Admin Per Se Hearing, and their license is NOT suspended, and then they are later convicted of a DUI, there license will then be suspended for 90 days, same as the admin per se suspension. However, in addition to the suspension, the driver will be required to obtain SR22 insurance - expensive, high-risk insurance - before reinstating. If the driver serves the admin per se suspension and it later convicted of a DUI, the MVD will typically not impose an additional suspension, and no SR22 insurance will be required.

What happens at the hearing?

At the hearing, an ADOT hearing officer will conduct the hearing. A police officer will testify about the circumstances of the traffic stop and the driver's BAC level, and the driver will have the opportunity to cross examine the officer and to also testify.

The scope of the hearing is very narrow. The hearing officer doesn't care if there was probable cause to initiate the traffic stop in the first place. All the hearing officer is looking for is:

1. Whether the officer had reasonable grounds to believe the person was driving or was in actual physical control of a motor vehicle while under the influence of intoxicating liquor or drugs.

2. Whether the person was placed under arrest for a violation of section 4-244, paragraph 34, section 28-1381, section 28-1382 or section 28-1383 or for a violation of title 13, chapter 11 or section 13-1201 or 13-1204 involving a motor vehicle.

3. Whether a test was taken, the results of which indicated any of the following:

(a) An alcohol concentration in the person's blood or breath at the time the test was administered of either:

(i) 0.08 or more.

(ii) 0.04 or more if the person was driving or in actual physical control of a commercial motor vehicle.

(b) Any drug defined in section 13-3401 or its metabolite in the person's body except if the person possesses a valid prescription for the drug.

4. Whether the testing method used was valid and reliable.

5. Whether the test results were accurately evaluated.

The above list is taken from A.R.S. 28-1385(J).

Also important to note is that this hearing is a civil matter (even though the actual DUI charge is criminal), so the burden of proof for the State (the police officer) is very low. The hearing officer must only believe that is is more likely than not (51% chance or greater) that what the officer says is true in order to find in favor of the officer and for the driver to lose.

What if a driver loses at a hearing?

If a driver loses at the admin per se hearing, the 90 day suspension will go into effect within 30 days of the hearing. If the driver is then later convicted of a DUI, in most cases the MVD will not impose an additional suspension. In other words, if a driver serves the admin per se suspension, that will likely be the only suspension related to a DUI. And because the suspension is due to the admin per se and not a DUI conviction, the driver will not need to obtain SR22 insurance.

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