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.
Notes of Decisions
Cited in
43
cases (
2 in the last 5 years), 2000–2024 · leading case:
State v. Estrada, 100 P.3d 452 (Ariz. Ct. App. 2004).
State v. Estrada, 100 P.3d 452 (Ariz. Ct. App. 2004).
· cites it 21× “If a person revokes this implied consent, that is, refuses to submit to the test chosen by the law enforcement officer, § 28-1321(D)(1) provides that: “The test shall not be given, except as provided in § 28-1388, subsection E or pursuant to a search warrant.”
State Ex Rel. Pennartz v. Olcavage, 30 P.3d 649 (Ariz. Ct. App. 2001).
· cites it 18× “”) section 28-1388(A) (Supp.2000). A Scottsdale City Court judge ruled that phlebotomists were not qualified persons under the statute unless they drew blood under the supervision of a licensed medical professional.”
State v. Don Jacob Havatone, 389 P.3d 1251 (Ariz. 2017).
· cites it 8× “¶55 To authorize a warrantless blood draw under the medical blood draw exception, A.R.S. § 28-1388(E) (former § 28-692(M)), Cocio required the presence of “exigent circumstances.”
State v. Whelan, 91 P.3d 1011 (Ariz. Ct. App. 2004).
· cites it 22× “2001), which held that phlebotomists are "qualified persons" to draw blood in a DUI case under A.R.S. § 28-1388(A). Id. at 588, ¶ 21, 30 P.”
State v. Nissley, 362 P.3d 493 (Ariz. Ct. App. 2015).
· cites it 50× “§ 28-1321(D)(1) (noting if person revokes implied consent, blood test “shall not be given, except as provided in section 28-1388, subsection E or pursuant to a search warrant”).”
State v. Clary, 2 P.3d 1255 (Ariz. Ct. App. 2000).
· cites it 14× “The test shall not be given, except as provided in § 28-1388, subsection E or pursuant to a search warrant.”
State v. Aleman, 109 P.3d 571 (Ariz. Ct. App. 2005).
· cites it 24× “§ 28-673(C) is unconstitutional and, even if it is not, the blood draw pursuant to that statute was illegal.”
State v. Olcan, 61 P.3d 475 (Ariz. Ct. App. 2003).
· cites it 24× “2001), which states in part: 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…”
State v. Peltz, 391 P.3d 1215 (Ariz. Ct. App. 2017).
· cites it 6× “He also argued that, because there were no exigent circumstances and “[t]here was no medical purpose for blood testing,” the medical blood draw excep *32 tion to the warrant requirement under A.R.S, § 28-1388(E) did not apply. 4 ¶ 32 At the suppression hearing, Abdullah…”
State v. Patrick McLeod Nissley, 387 P.3d 1256 (Ariz. 2017).
· cites it 8× “A.R.S. § 28-1388(E). This exception applies only when the sample is drawn for medical reasons and exigent circumstances exist.”
Carrillo v. Houser, 232 P.3d 1245 (Ariz. 2010).
· cites it 5× “¶ 17 In addition to clarifying the meaning of refusal, the legislature also amended the implied consent law to specify circumstances in which tests may be administered even if the arrestee refuses to submit. In 1984, the legislature added a provision to subsection (D) allowing…”
State v. Carrasco, 49 P.3d 1140 (Ariz. Ct. App. 2002).
· cites it 8× “¶ 7 Section 28-1388(A) defines the class of persons who are statutorily authorized to draw blood for DUI purposes.”
— Ariz. Rev. Stat. § 28-1388(0) — 2 cases
State v. Olcan, 61 P.3d 475 (Ariz. Ct. App. 2003).
“2001), which states in part: 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…”
— Ariz. Rev. Stat. § 28-1388(A) — 6 cases
State Ex Rel. Pennartz v. Olcavage, 30 P.3d 649 (Ariz. Ct. App. 2001).
“”) section 28-1388(A) (Supp.2000). A Scottsdale City Court judge ruled that phlebotomists were not qualified persons under the statute unless they drew blood under the supervision of a licensed medical professional.”
State v. Whelan, 91 P.3d 1011 (Ariz. Ct. App. 2004).
“2001), which held that phlebotomists are "qualified persons" to draw blood in a DUI case under A.R.S. § 28-1388(A). Id. at 588, ¶ 21, 30 P.”
State v. Carrasco, 49 P.3d 1140 (Ariz. Ct. App. 2002).
“¶ 7 Section 28-1388(A) defines the class of persons who are statutorily authorized to draw blood for DUI purposes.”
State v. Olcan, 61 P.3d 475 (Ariz. Ct. App. 2003).
“2001), which states in part: 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…”
— Ariz. Rev. Stat. § 28-1388(B) — 1 case
— Ariz. Rev. Stat. § 28-1388(C) — 6 cases
— Ariz. Rev. Stat. § 28-1388(D) — 2 cases
State v. Clary, 2 P.3d 1255 (Ariz. Ct. App. 2000).
“The test shall not be given, except as provided in § 28-1388, subsection E or pursuant to a search warrant.”
— Ariz. Rev. Stat. § 28-1388(E) — 23 cases
State v. Estrada, 100 P.3d 452 (Ariz. Ct. App. 2004).
“If a person revokes this implied consent, that is, refuses to submit to the test chosen by the law enforcement officer, § 28-1321(D)(1) provides that: “The test shall not be given, except as provided in § 28-1388, subsection E or pursuant to a search warrant.”
State v. Don Jacob Havatone, 389 P.3d 1251 (Ariz. 2017).
“¶55 To authorize a warrantless blood draw under the medical blood draw exception, A.R.S. § 28-1388(E) (former § 28-692(M)), Cocio required the presence of “exigent circumstances.”
State v. Nissley, 362 P.3d 493 (Ariz. Ct. App. 2015).
“§ 28-1321(D)(1) (noting if person revokes implied consent, blood test “shall not be given, except as provided in section 28-1388, subsection E or pursuant to a search warrant”).”
State v. Aleman, 109 P.3d 571 (Ariz. Ct. App. 2005).
“§ 28-673(C) is unconstitutional and, even if it is not, the blood draw pursuant to that statute was illegal.”
State v. Peltz, 391 P.3d 1215 (Ariz. Ct. App. 2017).
“He also argued that, because there were no exigent circumstances and “[t]here was no medical purpose for blood testing,” the medical blood draw excep *32 tion to the warrant requirement under A.R.S, § 28-1388(E) did not apply. 4 ¶ 32 At the suppression hearing, Abdullah…”
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