Too Drunk To Drive But Not Too Drunk To Consent To Evidentiary Draw Blood

If you or a loved one rang in the New Year with too much alcohol, a legal challenge to one of Arizona’s driving under the influence laws may be of interest.

Since June, Tucson-based attorney Mark Willimann has been championing a federal lawsuit against the long-standing assumption that all drivers can provide voluntary consent for a blood draw, no matter how drunk they may be at the time. That’s what happened with Gail Kristine Bennett, who was pulled over by a Pima County sheriff’s deputy in December 2014 on suspicion of drunk driving.

Court records show Bennett was convicted at trial in 2017, in large part due to the blood test she consented to which showed Bennett had a .191 blood alcohol concentration. She agreed to the blood draw after the deputy read a Motor Vehicle Department statement that advised “Arizona law requires you to submit” to the testing.

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But Bennett’s habeas corpus petition contends the State of Arizona violates the Equal Protection Clause of the Fourteenth Amendment by affording precautions for some people suspected of driving under the influence of drugs or alcohol only to condone a violation of those same people’s Fourth Amendment rights by insisting they can knowingly consent -or not consent- to a blood test despite their intoxication.

“Arizona protects those who are under the influence of drugs or alcohol from making major life decisions, such as to waive their constitutional rights at a change of plea hearing, or to engage in consensual sex,” the petition for a writ of habeas corpus states. “But when they are out of court, these same inebriated individuals are no longer protected under the law.”

Court records also show that prior to the start of Bennett’s trial, the Arizona Supreme Court ruled in another case that officers could no longer provide the instruction, although there can be other consequences for not consenting. However, a Pima County judge ruled the deputy relied in good faith when giving the advisory in 2014.

The county judge also denied Bennett’s challenge to her ability to knowingly consent to the blood draw, noting her “actions and behavior unequivocally established that she was aware enough to consent to the blood draw, understood the situation, and was able to discern what was going on,” despite the deputy’s testimony that Bennett displayed “all the signs and symptoms consistent with alcohol impairment.”

Bennett could not undertake a federal challenge to her DUI case until all possible appeals and reviews were finished in state courts.

“Here, the State denied (Bennett) the protections provided those under the influence when the officer knew she was impaired, but asked her for consent to waive her Fourth Amendment rights,” it states. “This begs the question: Why would an inebriated individual be prevented from waiving his Fifth and Sixth Amendment rights when in front of a judge, but encouraged to waive his Fourth Amendment rights when stopped by law enforcement after a traffic stop?”

The Pima County Attorney’s Office contends Bennett filed her federal action well past the deadline set by law. It also argues that a Fourth Amendment claim is “not cognizable on habeas review.”

The parties, which also includes Pima County Sheriff Mark Napier, have been waiting since Aug. 31 for a decision from U.S. Magistrate Judge Rosemary Marquez.