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 below on the driver. There are two types of license suspension that can result from this affidavit, an admin per se suspension, or an implied consent suspension.
Below is a picture of what the admin per se / implied consent affidavit looks like.
Admin Per Se Affidavit – What does that mean?
“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 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.
If you have an Arizona license, the police will confiscate your license when you are served with the affidavit. The affidavit will then serve as your temporary license. If you have an out of state license, the police should not your out of state license.
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. If the police draw blood, there may be a delay in serving the Affidavit while the police await the results of the blood test. Or they may just serve the affidavit anyway based on their belief that the driver is impaired. Once a driver is served with an Implied Consent Affidavit though, the clock starts. Two choices exist:
1. Do Nothing – Get a 90 day suspension.
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 30 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 30 days of service of the Affidavit. It is therefore a good idea to submit a hearing request at least a few days before the 30 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 the first 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.
3. Get a Special Ignition Interlock Restricted Driver License (SIIRDL)
This is a new option for 2023. On or after the first day of the suspension, the driver can apply to the MVD for a SIIRDL. In order to apply for the SIIRDL, the driver will need:
- Proof of installation of a certified ignition interlock device
- Proof of completion of an alcohol screening
Additionally, the SIIRDL is only available in this situation if the driver
- did not cause death or serious injury, and
- doesn’t not have a prior DUI conviction within 84 months.
The driver will want to complete the alcohol screening and get the ignition interlock installed at least 3 business days before visiting the MVD to apply for the SIIRDL. This is because the MVD will want the proof of screening completion and interlock installation to be provided by the companies, not the driver, and it takes some time for these companies to transmit proof to the MVD.
The time spent with the ignition interlock installed will also count towards any ignition interlock requirements that may arise following a DUI conviction.
Also new for 2023, the SIIRDL will allow the driver to drive anywhere. It no longer restricts driving to places like school and work.
What does an admin per se hearing look like?
In some instances, it may not make sense to proceed with the administrative hearing. For example, it has been taking upwards of 6 months between the time a hearing is requested and a hearing is set. The court case may be concluded within that time. If the driver is found guilty of a DUI, he may just want to vacate the hearing, stipulate to the suspension and choose a start date for the suspension within 45 days.
If the hearing takes place, the scope is fairly narrow. The administrative hearing judge is going to look at five factors (set forth in A.R.S. 28-1385(K)):
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 burden of proof at an ADOT administrative hearing
Also important to note is that ADOT administrative hearings are civil matters (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.
Winning and losing at the hearing – what happens?
There is no admin per se suspension if the driver wins at the 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 the 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 to reinstate.
Implied Consent Affidavit – What does that mean?
In Arizona, when you drive a car you implicitly 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.
Implied Consent Consequences – 1 year suspension.
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 or 9000 (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.
Options after receiving an implied consent affidavit
1. Do Nothing.
If the driver does nothing, then the 1-year suspension will begin 15 days after the affidavit is served.
If a driver gets the one-year suspension, the driver may apply for a special ignition interlock restricted driver license at any time during the suspension. This will allow the driver to drive anywhere as long as they have an ignition interlock device installed.
2. Request a Hearing.
The hearing process is much the same as it is for the admin per se hearing described above, except the administrative hearing officer is looking for different things at the hearing (See A.R.S. 28-1321(K)). In order for the driver to be suspended, the hearing officer must find that:
1. A law enforcement officer had reasonable grounds to believe that the person was driving or was in actual physical control of a motor vehicle in this state either:
(a) While under the influence of intoxicating liquor or drugs.
(b) If the person is under twenty-one years of age, with spirituous liquor in the person’s body.
2. The person was placed under arrest.
3. The person refused to submit to the test.
4. The person was informed of the consequences of refusal.
Issues with ADOT hearing requests
Timing is an important issue. Ideally, the officer files the affidavit with ADOT immediately. Then the driver files a request for a hearing within 30 days and a hearing is set sometimes out in the future.
However, police officers routinely delay the filing of the affidavits, which can create real problems for drivers. Sometimes I think police officers know this and do it on purpose. If the officer does not file that affidavit before the driver files a request for a hearing, ADOT will not process that request for a hearing and will just suspend the driver when the affidavit is filed.
Our office policy is to file a request for a hearing weekly until we can confirm that 1) the affidavit has been filed with ADOT, and 2), ADOT has our hearing request.
Another timing issue
A.R.S. 28-1385(C) provides that a police officer has 30 days from the date the results are provided to law enforcement to submit the breath or blood test report to ADOT. If the report is not submitted within those 30 days, the report may NOT be used at any administrative hearing.