ARS 28-1388: Blood and breath tests
The complete text of A.R.S. § 28-1388 on blood and breath tests, what the State has to prove, and the sentencing range, with a violation charged as a class 1 misdemeanor and exposure reaching up to 6 months in jail.
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Penalties for a § 28-1388 Conviction
A.R.S. § 28-1388 is the Arizona statute on blood and breath tests. A violation is a class 1 misdemeanor, depending on the paragraph charged and what the State can prove. The maximum exposure is 6 months in jail.
| Class | Maximum jail | Maximum fine |
|---|---|---|
| Class 1 misdemeanor | 6 months | $2,500 |
Felony ranges are set by A.R.S. § 13-702(D) and apply to a first felony conviction that is not dangerous and not repetitive. A dangerous offense (§ 13-704), a repetitive offense (§ 13-703) or a dangerous crime against children (§ 13-705) carries a longer range, and some carry mandatory prison with no probation. Misdemeanor maximums come from §§ 13-707 and 13-802; surcharges are added on top of every fine.
Full Text of A.R.S. § 28-1388
A. If blood is drawn under section 28-1321, only a physician, a registered nurse or another qualified person may withdraw blood for the purpose of determining the alcohol concentration or drug content in the blood. The qualifications of the individual withdrawing the blood and the method used to withdraw the blood are not foundational prerequisites for the admissibility of a blood alcohol content determination made pursuant to this subsection.
B. If a law enforcement officer administers a duplicate breath test and the person tested is given a reasonable opportunity to arrange for an additional test pursuant to subsection C of this section, a sample of the person’s breath does not have to be collected or preserved.
C. The person tested shall be given a reasonable opportunity to arrange for any physician, registered nurse or other qualified person of the person’s own choosing to administer a test or tests in addition to any administered at the direction of a law enforcement officer. The failure or inability to obtain an additional test by a person does not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer.
D. If a person under arrest refuses to submit to a test or tests under section 28-1321, whether or not a sample was collected pursuant to subsection E of this section or a search warrant, evidence of refusal is admissible in any civil or criminal action or other proceeding. The issue of refusal is an issue of fact to be determined by the trier of fact in all cases.
E. Notwithstanding any other law, if a law enforcement officer has probable cause to believe that a person has violated section 28-1381 and a sample of blood, urine or other bodily substance is taken from that person for any reason, a portion of that sample sufficient for analysis shall be provided to a law enforcement officer if requested for law enforcement purposes. A person who fails to comply with this subsection is guilty of a class 1 misdemeanor.
F. A person who collects blood, urine or any other bodily substance under this section or any hospital, laboratory or clinic employing or using the services of the person does not incur any civil liability as a result of this activity if requested by a law enforcement officer to collect blood, urine or other bodily substances unless the person, while performing the activity, acts with gross negligence.
G. A statement by the defendant that the defendant was driving a vehicle that was involved in an accident resulting in injury to or death of any person is admissible in any criminal proceeding without further proof of corpus delicti if it is otherwise admissible.
Source: Arizona Revised Statutes § 28-1388, Arizona Legislative Council revision of 09/20/25. Read the official text on azleg.gov. Statutes change; verify the current version before relying on it.
Our Guides on This Charge
Written by our defense team on how these cases run in Arizona courts.
- How to Beat a DUI Blood Test in Arizona: ARS 28-1388
- Goodyear DUI Lawyer | Aggressive DUI Defense
- What Happens at an ADOT Hearing for ARS 28-1321? Refusal
Related Statutes in Title 28 — DUI and Implied Consent
- A.R.S. § 28-1383 — Aggravated driving or actual physical control while under the influence
- A.R.S. § 28-1382 — Driving or actual physical control while under the extreme influence of intoxicating liquor
- A.R.S. § 28-1381 — Driving or actual physical control while under the influence
How Tamou Law Group Defends § 28-1388 Cases
A § 28-1388 case is decided by the paragraph the State charged, not by the statute as a whole. We start with the charging document and the disclosure, identify which subsection the prosecutor has to prove, and test whether the evidence actually reaches every element of it. Where the class turns on a fact such as value, an alleged injury, a prior conviction or the identity of the person involved, that fact is frequently the difference between a class 1 misdemeanor and something far less serious, and it is where these cases are won.
We handle blood and breath tests cases across Maricopa County and statewide, from our Scottsdale and Phoenix offices. Call 623-321-4699 any time, or read the statute in full above before you speak to anyone about the case.
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Frequently Asked Questions
What is A.R.S. § 28-1388?
A.R.S. § 28-1388 is the Arizona statute on blood and breath tests. A violation is a class 1 misdemeanor, and which class applies depends on the paragraph charged and the facts the State can prove.
Is a violation of § 28-1388 a felony in Arizona?
No. Under the statute a violation is a class 1 misdemeanor, so the exposure reaches up to 6 months in jail. The paragraph charged and the facts decide which class applies.
What is the maximum penalty for a class 1 misdemeanor?
A.R.S. 13-707 caps jail at 6 months for a class 1 misdemeanor and A.R.S. 13-802 caps the fine at $2,500, before surcharges. A judge may also impose probation and other conditions.
Where can I read the official text of § 28-1388?
The Arizona Legislature publishes it at azleg.gov, in the revision dated 09/20/25. The complete text is reproduced on this page, and every Arizona criminal statute is searchable on our Arizona Criminal Code index.
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