Admin Per Se License Suspension in Arizona: ARS 28-1385 click for a free consultation

Posted on April 10, 2025 in Arizona Revised Statutes,Drivers License Suspension Or Revocation

In Arizona, if you are arrested for driving under the influence of alcohol or drugs (DUI), then even if you are not formally charged, you can still have your license suspended for 90 days under ARS 28-1385. This is known as an administrative per se suspension.

In this post, we examine Arizona’s administrative per se law. Specifically, we cover how the law applies to a DUI arrest, the effects of an administrative license suspension, and how you can contest an administrative per se DUI suspension.

Call Rosenstein Law Group at (480) 248-7666 or use our contact form to get help with an admin per se license suspension.

What Does “Administrative Per Se” Mean?

Under Arizona law, you can be subject to administrative (civil) punishments for being arrested for a suspected DUI violation.

Administrative penalties work on a separate track from criminal proceedings. They do not depend on you being convicted in criminal court, although they can be triggered by the application of a criminal statute in the event you are convicted in the criminal court.

In Arizona, if a court convicts you of DUI, one of the possible court-ordered punishments you will receive is an Arizona license suspension or revocation as part of your sentence.

This is separate from the administrative (civil) suspension, which is under the authority of the Motor Vehicle Division (MVD) of the Arizona Department of Transportation. Both suspensions can apply to you if you are ultimately convicted of DUI in criminal court.

When Can You Be Subject to an Administrative License Suspension?

ARS 28-1385(A)(1) identifies the following situations in which you can be subject to a 90-day administrative per se license suspension.

You Must Be Arrested for a Specific Statutory Violation

Here are the statutory violations that can lead to an administrative per se law license suspension:

• ARS 4-244(34): Underage DUI
• ARS 28-1381: Misdemeanor DUI
• ARS 28-1382: Extreme DUI
• ARS 28-1383: Aggravated DUI
• ARS 13-1201: Reckless endangerment involving a motor vehicle
• ARS 13-1204: Aggravated assault involving a motor vehicle
• ARS Chapter 13, Title 11: Homicide involving a motor vehicle

You Must Also Test Positive for Alcohol or Drugs

In addition to being arrested for one of the specific kinds of offenses above, ARS 28-1385(A)(2) states that you must also have submitted to a test of your blood, breath, urine, or another bodily substance and that the test result be one of the following:

• A blood alcohol concentration (BAC) of 0.08 or more in a blood or breath sample
• For drivers of commercial motor vehicles or vehicles for hire, a BAC of 0.04 or more
• The presence of any drug specified in ARS 13-3401 if you do not have a valid prescription for it

The Arizona Per Se / Implied Consent Affidavit

At the same time, the police officer issues a citation for DUI, the officer will also fill out and issue the driver a copy of the Arizona Per Se / Implied Consent Affidavit This document implements an administrative per se license suspension.

The driver will receive a copy of this affidavit form when:

• The driver either tests positive for alcohol greater than 0.0799%, or for drug(s) listed in 13-3401; or
• The driver refuses to provide a blood, breath, urine, or other sample.

Note that if a driver refuses to provide a sample for drug or alcohol testing, the police will request a search warrant to obtain a sample of your blood. In this event, the driver can be cited for DUI later when the results from the state’s blood test are obtained.

The Per Se / Implied Consent Affidavit is usually one page, printed on the front and back and it contains the following parts:

• The applicable charge against the driver.

• A requirement for the police officer to require the driver to surrender his or her Arizona driver’s license or permit.

• Admonitions to the driver about the consequences of consenting as well as refusing to submit to alcohol or drug testing.

• An order for the driver’s license suspension and issuance of a temporary 30-day driving permit.

Here are some things to keep in mind about the effect of receiving the Admin Per Se / Implied Consent Affidavit:

• If you have an out-of-state driver’s license, the police officer should not confiscate it, however your privilege to drive in Arizona will still be suspended.
• If you consent to drug and/or alcohol testing, and drugs or alcohol are present in your system in prescribed amounts under ARS 28-1385(A)(2), then the MVD will administratively suspend your license for at least 90 days.
• Failure to expressly consent to a test of your breath and/or blood, and/or you cause an unreasonable delay in expressly consenting to the drug and/or alcohol test is considered to be a refusal to consent.
• If you refuse to expressly consent to alcohol or drug testing or do not successfully complete testing, then your license suspension will be for 12 months for a first time refusal within an 84-month period.
• If you already had a prior implied consent refusal within an 84-month period, the suspension is for 24 months.
• An administrative per se/implied consent license suspension becomes effective 30 days from the date the officer served the affidavit upon you.
• During this 30-day period, the affidavit also serves as your temporary driver’s permit for those 30-days.
• You must successfully complete alcohol or drug screening before your Arizona driver’s license suspension can be reinstated.
• You can make a written hearing request during the 30-day temporary permit period to review the administrative license suspension. If you do not, the license suspension automatically goes into effect.

What Can You Do After Receiving the Admin Per Se / Implied Consent Affidavit?

You must act quickly if you want to review and contest the administrative per se / implied consent driver’s license suspension. 

If you make your written review request to the MVD Executive Hearing Office within the 30-day time period, then the suspension of your license will be stayed (I.e., put on hold) until your hearing before an administrative law judge is conducted and you can continue to drive up until the outcome of the ensuing ADOT hearing.

What Happens at the MVD Hearing?

The MVD admin per se hearing is informal. It will usually take place in a conference room where you, your DUI defense attorney, and the police officer who issued you the affidavit will attend in the presence of the hearing officer, who will be an administrative law judge.

In most instances, you do not need to attend the hearing if your attorney is present and dutifully motions the judge to waive your appearance for purposes of the hearing.

The hearing will only cover a limited number of topics that the judge will ask the police officer about. These include:

• Did the law enforcement officer have reasonable grounds to believe you were in actual physical control of a motor vehicle while impaired by drugs or alcohol?
• Did the police officer arrest you for DUI charges?
• Did a chemical test reveal that you had a BAC of 0.08 or higher (or 0.04 if you were driving a commercial vehicle), the presence of a drug or its metabolite(s) listed in ARS 13-3401 without a valid prescription?
• Was the BAC testing method valid and reliable?
• Were the test results accurately evaluated?

The officer is responsible for proving all of these elements. However, unlike in a criminal trial, in which the standard of proof is “beyond a reasonable doubt,” the police officer’s burden of proof in this administrative hearing is substantially lower, the officer must prove “by a preponderance of the evidence”.

What Defenses Can You Make at the Hearing?

During the hearing, you or your defense lawyer can ask the police officer questions to see if you can identify any weaknesses in the case against you.

You can also testify yourself, but usually, this is not advisable because anything you say in this ADOT hearing can be used against you in the criminal court matter.

Because the hearing only considers a limited number of questions, your possible defenses must center on creating enough doubt in the answers to those questions to convince the judge to void the suspension.

Accordingly, you or your attorney can seek to:

• Challenge whether the officer had reasonable grounds to suspect that you were impaired or in actual physical control of a vehicle at the time.
• Point out that the police officer did not arrest you for DUI.
• Challenge the results or the accuracy of the BAC concentration results from testing.
• Challenge whether any drugs in your system were the result of valid prescription(s).
• Provide a valid medical prescription for the presence of drugs in your system.
• Challenge whether any chemical test was evaluated correctly and complied with Arizona regulations for chemical testing.
• Challenge whether the police officer filed the affidavit within 30 days of the arrest. If the officer does not do this, ADOT may not enter an order of suspension unless the violation of the Arizona DUI law(s) resulted in death or serious physical injury.

At the end of the hearing, the administrative law judge will decide to either uphold or void the administrative per se license suspension.

What Happens if You Do Not Win at the MVD Hearing?

If you do not prevail in the hearing, then the judge will allow you to request a date for the administrative license suspension to begin anytime usually so long as it’s within 30 days of the administrative law judge’s ruling.

If your license is from out of state, you will not be allowed to drive at all during the 90-day suspension period.

If you hold an Arizona driver’s license, you have three options:

1. You don’t drive for the 90-day period

2. You cannot drive at all for the first 30 days of the suspension. During this period, you may be eligible to apply for a 60-day restricted driver’s permit if it is the only Admin Per Se suspension you have received in an 84-month period and complete drug and/or alcohol screening through an ADOT approved provider. This temporary restricted license will allow you to drive for specific purposes, including:

• Driving to and from work
• Driving to and from school
• Driving to and from medical appointments
• Driving to and from court hearings, probation officer appointments, and drug and alcohol counseling classes

3. If you have not received an Admin Per Se suspension within and 84-month period, you can drive for the entire 90-day suspension period if you 1.) complete alcohol and/or drug screening through an ADOT approved provider; 2.) you install an ignition interlock device on any vehicle you operate, at your expense, for the full 90-days; and, 3.) you obtain an SR-22 Certificate and provide proof of each of the 3 items to MVD.

However, please note, that options 2 and 3 are NOT available if the Admin Per Se suspension involved a motor vehicle accident that resulted in death or serious bodily injury, and/or you have had another Admin Per Se suspension served upon you within an 84-month period.

License Reinstatement

At the end of the 90-day suspension, in addition to completing a drug and/or alcohol screening, you will need to pay a reinstatement fee to restore your full driving privileges.

You may be able to reinstate your license online or you can visit an MVD office.

Schedule a Free Consultation With an Experienced Scottsdale DUI Attorney

If you are facing an admin per se DUI license suspension in Arizona, then contact the Scottsdale DUI attorneys at Rosenstein Law Group for a free initial consultation as soon as possible. 

Remember, you only have 30 days to make a timely request for review of the administrative action.Call us today at (480) 248-7666 or contact us online.