Arizona DUI Arrest and Blood Draw While Asleep in a Parked Car

Attorney Answer

Being asleep in a stationary car does not defeat an Arizona DUI, and passing the field sobriety tests does not either — the State will build its case on the blood result. Your real fight is over the blood draw, and your license has its own 30-day clock.

A.R.S. § 28-1381 defines the offense as driving or being in actual physical control of a vehicle while under the influence. That alternative is why officers arrest people found asleep behind the wheel. Whether you were in actual physical control is decided on all the circumstances, not by the single fact that the car was not moving.

On the blood draw, two Arizona Supreme Court decisions frame the argument, and one of them cuts against a theory people commonly try. In Diaz v. Bernini, 246 Ariz. 114, 435 P.3d 457 (2019), the court held that while A.R.S. § 28-1321 requires an arrestee's express agreement before a sample is taken, the statute itself does not require that agreement be voluntary. So a claim that you only agreed because you felt you had no choice is not a statutory violation — it is a Fourth Amendment challenge, and it has to be brought as one.

As a Fourth Amendment matter, State v. Valenzuela, 239 Ariz. 299, 371 P.3d 627 (2016), held that where an officer delivers the implied-consent admonition by telling an arrestee that Arizona law requires submission, proof that the arrestee then submitted does not by itself carry the State's burden of showing free and voluntary consent; the trial court must weigh the totality of the circumstances. Be clear-eyed about the outcome: Valenzuela's own convictions were affirmed, because the admonition had been given in good-faith reliance on then-existing law. The case tells you what the State must prove. It does not promise suppression.

On your license, because you gave a sample rather than refusing, the governing statute is A.R.S. § 28-1385, not the refusal statute. That is the 90-day administrative suspension, the order takes effect thirty days after it is served, and a hearing request must be received within thirty days of the notice.

What you can do

1. Find every piece of paper you were handed and look for a notice of suspension. If one was served, request the hearing in writing within thirty days. 2. Send a preservation demand for body camera and any in-car video, and for the dispatch recording — the video of you asleep, and of what the officer said before the draw, is the case. 3. Ask whether a search warrant was obtained for the blood. If there was no warrant, the voluntariness of your agreement becomes the central question. 4. Request the blood kit paperwork, chain of custody, and the lab's analysis packet, not just the number. 5. Write down now what the officer said to you word for word before you agreed to the draw.

⏱ Time limits apply. The administrative hearing request under A.R.S. § 28-1385 must be received within thirty days of the notice, and the suspension takes effect thirty days after service. That license case runs separately from the criminal case, on a lower standard of proof, and can come out the other way. Whether your thirty days has started depends on what was served on you and when — check your own paperwork.