What Happens at an ADOT Hearing for ARS 28-1321? Refusal

What Happens at an ADOT Hearing for ARS 28-1321?

That is the refusal hearing in one paragraph. When an Arizona driver is recorded as having refused a DUI test, A.R.S. § 28-1321 puts a 12-month license suspension in motion, and the ADOT hearing is the only place to stop it. It is a civil proceeding before an administrative law judge, not part of the criminal case, and it is narrower than most people expect. Below: what the statute requires, how to request the hearing and the 30-day deadline, the four questions the judge is allowed to decide, what happens at the hearing itself, the outcomes, and the defenses that actually void refusal suspensions.

What Is ARS 28-1321, Arizona’s Implied Consent Law?

Under A.R.S. § 28-1321(A), anyone who operates a motor vehicle in Arizona has already consented to a test of blood, breath, urine, or other bodily substance to determine alcohol concentration or drug content, if arrested for DUI or for underage driving with alcohol in the body under § 4-244(34). The consent is a condition of driving here, and it binds out-of-state drivers on Arizona roads. Two limits are built in: the test must follow an arrest, and it must be directed by an officer with reasonable grounds to believe you were driving or in actual physical control while impaired, on drugs, or, if under 21, with any alcohol in your body. The officer chooses the test, not the driver; you cannot insist on breath instead of blood.

What Must the Officer Tell You After the Arrest?

Section 28-1321(B) requires the officer to ask you to submit to and complete the test and, if you refuse, to inform you that your license will be suspended for 12 months, or 2 years for a second or subsequent refusal within 84 months, unless you expressly agree and complete the test. The officer must also tell you that a result of .08 or more (.04 in a commercial or for-hire vehicle, or any drug or metabolite without a prescription) brings a separate suspension of at least 90 days, and that reinstatement requires alcohol or drug screening. That warning is an element the State must later prove at the hearing (§ 28-1321(K)(4)), which is why officers read it from a card and why what was actually said matters.

What Counts as a Refusal Under 28-1321?

More than saying no. Under § 28-1321(B), a failure to expressly agree to the test, or to successfully complete it, is deemed a refusal. Defense attorneys commonly see refusals built from silence, from “I want to talk to my lawyer first,” from repeated questions, from a breath sample the machine reads as insufficient, and from agreeing to one test but not the other. The certified report the officer files must state the manner of the refusal and that you were advised of the consequences (§ 28-1321(E)), and it is filed under penalty of perjury. Whether a hesitant or confused response was truly a refusal is the most contested question at refusal hearings; see what happens after a refused breath test.

How Do You Request the ADOT Hearing, and What Is the Deadline?

Request a hearing so that ADOT receives it within 30 days of the order or the mailed notice; otherwise the suspension is final (§ 28-1321(F), (G)). A timely request stays the suspension and ADOT issues temporary permits until the decision (§ 28-1321(J)).

What Does the Judge Decide at a 28-1321 Hearing?

Only four things, under § 28-1321(K): whether the officer had reasonable grounds to believe you were driving or in actual physical control while impaired or on drugs (or, if under 21, with any alcohol in your body); whether you were placed under arrest; whether you refused to submit to the test; and whether you were informed of the consequences of refusing. The judge does not decide whether you were actually impaired, whether the stop was lawful in the constitutional sense, or whether you need your license. Every refusal hearing is won or lost on one of those four elements, and the third and fourth are where the State most often fails.

What Happens at the Hearing Itself?

The hearing is set within 60 days of your request and may be held by phone, by video, or in person (§ 28-1321(I)), under the procedures of § 28-3306. An administrative law judge from ADOT’s Executive Hearing Office presides, swears in witnesses, and rules on subpoenas. The arresting officer is the State’s case: the judge reviews the certified refusal report, which must state the manner of the refusal and that you were warned (§ 28-1321(E)), and the officer testifies under oath to the stop, the arrest, the request, the warning, and your response. Your lawyer cross-examines on each of the four elements. You may testify but are not required to, and in most refusal cases the driver stays off the record, because the same facts are in play in the criminal case. Hearings typically run twenty minutes to an hour. If a subpoenaed officer does not appear, the State usually cannot prove its elements and the suspension is voided.

What Are the Outcomes of a 28-1321 Hearing?

• Suspension voided: an element was not proven; the order is set aside and your license is returned. Under § 28-1321(N) that ruling is not admissible in and has no effect on the criminal case;
• Suspension sustained: it takes effect 30 days after written notice (§ 28-1321(L)), for 12 months, or 2 years for a second refusal within 84 months. Reinstatement requires completed alcohol or drug screening;
• Judicial review: within 30 days of a sustained order you may petition the Superior Court, which hears the review on an expedited basis (§ 28-1321(M)).

For the admin per se version of the hearing, the one that follows a .08 or drug result rather than a refusal, see what happens at an ADOT hearing.

Can a Refusal Be Used Against You in Court?

Yes. Under § 28-1388(D), evidence that you refused is admissible in the criminal case whether or not a sample was later obtained by warrant, and whether you actually refused is a fact question for the jury. Prosecutors argue refusal shows consciousness of guilt; the defense answers with the confusion, the medical reasons, and the wording of the request. Note the asymmetry: a refusal is admissible against you, but a hearing ruling that voids your suspension is not admissible for you (§ 28-1321(N)).

Can You Get a Restricted License After a Refusal?

On a first refusal, yes: after completing screening you may apply for a special ignition interlock restricted driver license and keep the device for the rest of the suspension (§ 28-1321(P)). It is not available for a second refusal within 84 months. Two cautions: applying for that license under § 28-1321(Q) means you agree to the suspension and waive the hearing, and ADOT reports the suspension to your home state if you are a nonresident (§ 28-1321(O)). See how to get a restricted license after a DUI.

What Happens to Your License Under 28-1321?

• If you refuse: the officer serves an order of suspension effective in 30 days, takes your license, and issues a 30-day temporary permit (§ 28-1321(D)). The suspension is 12 months, or 2 years for a second refusal in 84 months (§ 28-1321(G)(3)). Reinstatement requires completed screening;
• If you test at .08 or more (or .04 commercial, or drugs): the admin per se track under § 28-1385 applies instead, a 90-day suspension that can run as 30 days with no driving plus 60 restricted; see how DUI license suspension works;
• Either way, the criminal case is separate. The license action happens whether or not you are ever convicted, and a conviction under § 28-1381 adds its own consequences, including the interlock; see whether you can wait out an ignition interlock.

What Happens If You Are Unconscious or Cannot Respond?

Under § 28-1321(C), a person who is dead, unconscious, or otherwise incapable of refusing is deemed not to have withdrawn consent, and the test may be administered. In practice this is the crash case: a driver taken to the hospital is tested, and under § 28-1388(E) any blood drawn for medical reasons must be shared with police on request when there is probable cause of DUI. Blood under the statute may be drawn only by a physician, nurse, or other qualified person (§ 28-1388(A)).

What Are the Defenses to a 28-1321 Suspension?

• No reasonable grounds for the DUI belief, or no arrest before the request;
• No true refusal: confusion, a request for clarification, a medical inability to blow, or a completed test on the second try;
• The admonition was not given or was garbled, an element the State must prove;
• The certified report is defective or filed late (the department may not enter the suspension without a report filed within 30 days of arrest, § 28-1321(D)(2)(a));
• The officer does not appear at the hearing after subpoena.

For the strategic question of whether to take the test in the first place, see should you take a breathalyzer or blood test and our page on consenting to blood or breath tests in Arizona. For the broader charge, see whether you go to jail for a DUI and the Arizona DUI charges hub.

How Tamou Law Group Defends 28-1321 Refusal Cases

We request the hearing in every refusal case, subpoena the officer, and try the four statutory issues, because a “refusal” is very often a confused or incomplete response that the report has hardened into a no. We run the criminal case in parallel, where the warrant blood and the admissibility of the refusal are the real fight. Members of the National College for DUI Defense, we handle the ADOT and court sides together.

Related guides: refusing a breathalyzer in Arizona, Miranda and DUI stops, DUI charges without a test, and the Arizona DUI charges hub. Call 623-321-4699, 24/7.