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 intoxilyzer (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 friend or relative.

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. The vials are then submitted to a crime laboratory that will conduct a gas chromatography analysis to determine your blood alcohol concentration, or BAC.

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 provide two breath samples by blowing into an intoxilyzer device. This device utilizes a “partition ratio” of 2100:1, assuming that for one particle of alcohol in your breath, there are 2100 particles of alcohol in your blood. The lowest of the two readings will be used as evidence of your intoxication. For example, if your breath samples were a .161% and a .155%, the .155% reading will be used and you will be charged with a High Rate of Alcohol DUI (.10-.159%) as opposed to a Highest Rate of Alcohol (.16% and above) offense.

Is There a Mandatory License Suspension for Refusing a Blood or Breath Test?

Yes. The suspension period is 12 months for a first offense, and 18 months if you have a prior DUI conviction or have refused chemical testing in the past. This suspension is separate from any license suspension that you face for the DUI offense itself. You can still lose your license for refusing a chemical test even if you are never charged with a DUI, or your DUI case is dismissed. 

If you are asked to submit to a chemical test of your blood or breath and refuse to submit to the test, your arresting officer may submit notice of this refusal to the Pennsylvania Department of Transportation. Thereafter, you will receive a Notice of Suspension from PennDOT, which will be mailed to your last registered address. You should always maintain an up-to-date address with PennDOT.

If you decide to dispute or challenge the Chemical Test Refusal in court, you have thirty (30) days from the mail date at the top of your Notice of Suspension to file a Statutory License Suspension Appeal. You should always consult with a qualified DUI defense attorney about your potential options.

At a Statutory License Suspension Appeal Hearing, to sustain a suspension of your driving privileges under Section 1547 of the Vehicle Code, PennDOT must establish: (1) that the licensee was arrested for DUI by a police officer who had reasonable grounds to believe that the motorist was operating a motor vehicle while under the influence of drugs or alcohol, (2) the licensee was requested to submit to a chemical test, (3) the licensee refused to submit to a chemical test, and (4) the licensee was warned that refusal would result in a license suspension.

When will I be charged with a DUI Refusal?

Separate from the Chemical Test Refusal license suspension outlined above, you may be charged with a DUI Refusal offense. 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. However, heightened mandatory penalties can apply if you were involved in an accident, or you are believed to be Driving Under the Influence of a Controlled Substance.

What are the penalties for a DUI Refusal charge?

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 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. 

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

If you were recently arrested for DUI, and you refused chemical testing, 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 DUI refusal case.