REFUSING DUI TESTING IN PA
A chemical test refusal occurs in PA when a person fails to submit to a blood or breath test after his or her DUI arrest. After being arrested on suspicion of DUI, the police will ask you to submit to either a blood draw or a breathalyzer test at the station or barracks. Many people refuse to submit to a blood or breath test based upon misinformation, such as bad advice from a relative, or from hearing a lawyer on TV discuss laws from another state.
Under Pennsylvania's implied consent law, in connection with obtaining a driver's license, drivers are required to consent to a blood draw, breath test or urine test upon request by a member of law enforcement. You may also be asked to submit to additional testing both before and after your arrest, including Field Sobriety tests, a Portable Breath Test, or to be evaluated by a Drug Recognition Expert.
REFUSAL OF BLOOD OR BREATH TEST IN PA
When Will Police Will Ask Me to Submit to Field Sobriety Tests, a Blood Test or a Breath Test?
In order to ask you to submit to field sobriety tests, police must have probable cause to believe that you have driven a vehicle under the influence of alcohol or drugs. You may refuse to take a field sobriety test. Typically, after administering field sobriety tests, the police will place you under arrest and transport you to a hospital for a blood draw, or to their station for a breathalyzer test.
At the hospital, a nurse will draw vials of blood from your arm, seal it, and provide it to police as evidence. If asked to submit to a breath test, the police will first have you undergo an “observation period,” to make sure you don’t vomit or consume food or alcohol that could impact the test results. After the conclusion of the 20 minute observation period, the intoxilyzer operator will ask you to blow into a breathalyzer machine, which measures the alcohol concentration in your breath as measured through alveolar blood. With a breath test, you will be required to blow into the device twice, with the lower of the two readings being used as evidence of your intoxication.
Is There a Mandatory License Suspension for Refusing a Blood or Breath Test?
If you refuse to submit to a blood or breath test as required, you will be subject to an automatic drivers license suspension of 12 months for a first offense, and for 18 months if you have a prior DUI conviction or have refused testing in the past. Unlike a standard license suspension for a DUI conviction, a refusal suspension will go into effect quickly, as the police officer is required to send paperwork to PennDOT after your arrest. You will lose your license even if you are never charged with DUI, or if you beat your DUI case.
When will I be charged with a DUI Refusal?
Recent case law decisions before the US Supreme Court and Pennsylvania Supreme Courts, along with a change in DUI legislation have changed the way DUI Refusals are charged in Pennsylvania. A person can be charged with DUI - Refusal, a highest-tier DUI offense, under the following circumstances:
For failing to take a breath test. Police do not need a warrant to request that you submit to a breath test.
For failing to take a blood test if the police officer has obtained a warrant in connection with the request to submit to a blood draw.
A person who refuses a blood test where the officer has not obtained a warrant will not be subject to highest tier penalties, but will face a DUI General Impairment offense instead, a lowest tier offense.
What are the penalties for a DUI Refusal?
DUI Refusals are considered highest tier offenses, punishable as follows:
1st Offense: Punishable by a mandatory minimum 72-hour jail sentence, maximum sentence of 6 months of incarceration, and a mandatory minimum $1,000 fine;
2nd Offense: Punishable by a mandatory minimum 90-day jail sentence, maximum sentence of 5 years of incarceration, and a mandatory minimum $1,500 fine;
3rd and Subsequent Offenses: Punishable by a mandatory minimum 1-year jail sentence, maximum sentence of 7 years of incarceration, and a mandatory minimum $2,500 fine;
Can I be charged with refusing testing if I didn't tell the police officer I wouldn't take the test?
Yes. You don't need to tell a police officer that you're not taking a blood or breath test to be deemed a refusal under the law. A refusal can be established through non-verbal conduct, such as failing to answer questions or respond to requests to submit to breath testing. When submitting to a breath test, providing insufficient breath samples can be deemed as a refusal.
Can I be charged with a DUI refusal when the hospital took blood during medical treatment?
Yes. As an example, a person involved in a DUI related accident who suffers from injuries may be taken to a hospital for medical treatment. At the hospital, the person may refuse the officer's request to draw blood, but may have blood tested in connection with medical treatment. Thereafter, the police may apply for a search warrant to obtain your BAC records from the hospital. You can be charged with both DUI refusal and for DUI based upon your blood alcohol content as noted in your medical records.
Can I ask for a breath test instead of a blood test, and vice versa?
Yes. Under Section 1547 of the Vehicle Code, a driver suspected of DUI may request a blood or breath test. The police are only required to comply with such requests when it is reasonably practicable to do so. For example, a person who asks for a breath test may be denied when the police department does not have a functional breathalyzer device at the station.
FIELD SOBRIETY TESTING
There is no requirement in Pennsylvania for a driver to submit to field sobriety testing. Field sobriety tests are conducted by police officers to determine if there is probable cause to arrest you. The horizontal gaze nystagmus, walk and turn, and one-legged stand tests are commonly administered, where the officer will look for various clues of impairment.
Field sobriety tests are not objective tests that are applied uniformly - they are biased, are often administered incorrectly, and are graded by a police officer who already thinks you are guilty. You will not pass a field sobriety test, even if you are not intoxicated. If you are asked to perform a roadside field sobriety test, politely decline.
PORTABLE BREATH TESTING
A Portable Breath Test (PBT) is a handheld device used by a police officer to detect the presence of alcohol on your breath, and will be administered roadside at the scene of your traffic stop before you are arrested. This is not considered a formal breath test, and must not be confused with a breath test conducted at a police station after you are arrested.
The purpose of a PBT is only to determine if there is some amount of alcohol in your system. The results are not admissible in court, and you must still submit to a breath or blood test after your arrest.
You are not required to submit to a Portable Breath Test at the scene of your traffic stop, and should not submit to a PBT test. After your arrest, you are required to submit to a breath test on a breathalyzer machine if asked to do so.
HOW THE ZUCKERMAN LAW FIRM CAN HELP
There are ways to beat a DUI refusal case, and to challenge any license suspension that may arise from the alleged refusal. In order to do so, you must act quickly in hiring the right lawyer for your case. Contact our firm at 412-447-5580 for a free consultation on your refusal case.