Refusing A BAC Test after a DUI Arrest in Pennsylvania

Chester County Drunk Driving Refusal Issues

According to Pennsylvania law, those arrested in the state for DUI are required to take a blood, breath or urine test, once arrested. Under the implied consent law in Pennsylvania, if the arresting officer has probable cause to believe a lawfully arrested citizen was driving under the influence, that person must submit to a BAC test or accept the consequences. The officer must administer the test within two hours of driving, and must observe the person under suspicion of DUI for twenty minutes prior to administering the test. If the person whose BAC was tested is later convicted of DUI, he or she will be responsible for the expense of the tests to determine impairment.

Once a suspect has submitted to the BAC test, they have the right to ask for additional BAC tests to be taken by their own physician. If the person arrested refuses the BAC test his or her driver’s license will be suspended for a period of one year. (18 months for a second or third DUI offense). The arresting officer is required to inform the suspect their license could be suspended if they refuse the BAC test. The officer should also tell the suspect that if they are later convicted of a DUI, they will be forced to accept the penalties for the refusal, as well as for the DUI. Regardless of whether the suspect submits to a BAC test, he or she is entitled to a hearing in order to challenge the driver’s license suspension.

Implied Consent Warning

Regardless of whether the suspect submits to a BAC test, he or she is entitled to a hearing in order to challenge the driver’s license suspension. Refusing a BAC test, then later being acquitted of DUI criminal charges does not mean the license suspension for refusal will be lifted. The police officer is required to read the Implied Consent warning (DL-26 form) to the suspect, however many believe there are serious issues associated with this waiver. Legally, proof must exist that the person refusing a chemical test made a knowing, intelligent, voluntary decision to refuse.

The Implied Consent warning, however, is only read in English, and is full of complex language which could be difficult, even for a native English speaker, to understand. This begs the question as to whether a person could make a knowing, intelligent, voluntary decision to refuse a Breathalyzer test when they did not fully understand the warning read to them regarding consequences for a refusal. In the end, a person refusing a chemical test who is later found guilty of a Pennsylvania DUI, could face an additional 12-18 months license suspension plus criminal penalties.

Express Refusal vs. Implied Refusal

It is important to note there are two types of refusals—an expressed refusal and an implied refusal. An expressed refusal occurs when the police tells the suspect they are going to administer a chemical test and the suspect clearly says “no.” The other type of refusal occurs when the suspect didn’t actually say “no,” but the police recorded a refusal. This can occur when the suspect was not physically able to perform a breathalyzer test due to a specific health problem.

Times a Person Can Be Forced to Undergo a BAC Test

The only time a person stopped on suspicion of DUI can be forced to take a BAC test is if that person was driving on a suspended license due to an alcohol-related offense at the time, or if he or she was involved in an accident where someone was killed or seriously injured. Refusing a BAC test brings no guarantee there will be no DUI conviction, since the prosecution will likely use the suspect’s refusal against them, arguing the person refused because they were intoxicated. In reality, while a DUI conviction can bring serious consequences, the penalties for a first DUI conviction in Pennsylvania are six months’ probation and a minimum fine of $300—no license suspension.

Challenging a Forced DUI Chemical Test

A forced blood draw could potentially be challenged on the chain of custody; the more people who handle the sample the higher the likelihood it could be contaminated. Certain medical conditions may also skewer blood test results, or the forced blood draw may have been obtained outside the two-hour window in which it must be performed. These issues may present the opportunity for a challenge to the results.

Refusing a BAC Test is No Guarantee of Dropped Charges or DUI Acquittal

Refusing a BAC test brings no guarantee there will be no DUI conviction, since the prosecution will likely use the suspect’s refusal against them, arguing the person refused because they were intoxicated. While a DUI conviction can bring serious consequences, the penalties for a first DUI conviction in Pennsylvania are six months’ probation and a minimum fine of $300—no license suspension. Due to the harsh penalties associated with refusing chemical testing, it is generally advised to submit to chemical testing.

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Chester County Refusal to Submit to BAC Testing Information Center

Pennsylvania Implied Consent Warning / “O’Connell Warning”

Every driver signs forms agreeing to implied consent laws when they apply for or renew their driver’s licenses. Pennsylvania’s implied consent law requires police officers to advise suspects that they do not have the right to speak to a lawyer or remain silent when asked to submit to BAC testing, and refusing will result in an automatic suspension of driving privileges.

If you are stopped for suspected drunk driving, the police officer is required to read you the implied consent warning known as the DL-26 form. This is also referred to as the “O’Connell Warning,” in reference to the Pennsylvania Supreme Court decision in Commonwealth of Pennsylvania, Department Of Transportation, Bureau of Traffic Safety v. Patrick M. O’Connell. In that case, O’Connell successfully argued that he refused to submit to a breathalyzer test because he mistakenly believed he had the right to speak with an attorney before taking the test.

When a police officer in Pennsylvania now issues the O’Connell Warning, it reads as follows:

Please be advised that you are under arrest for driving under the influence of alcohol or controlled substance in violation of Section 3802 of the Vehicle Code. I am requesting that you submit to a chemical test of blood, breath or urine. It is my duty as a police officer to inform you that if you refuse to submit to the chemical test, your operating privilege will be suspended for at least 12 months, and up to 18 months, if you have prior refusals or have been previously sentenced for driving under the influence. In addition, if you refuse to submit to the chemical test, and you are convicted of or plead to violating Section 3802(a)(1) (relating to impaired driving) of the Vehicle Code, because of your refusal, you will be subject to more severe penalties set forth in Section 3804(c) (relating to penalties) of the Vehicle Code, the same as if you would be convicted of driving with the highest rate of alcohol, which include a minimum of 72 consecutive hours in jail and a minimum fine of $1,000.00, up to a maximum of five years in jail and a maximum fine of $10,000. It is also my duty as a police officer to inform you that you have no right to speak with an attorney or anyone else before deciding whether to submit to testing and any request to speak with an attorney or anyone else after being provided these warnings or remaining silent when asked to submit to chemical testing will constitute a refusal, resulting in the suspension of your operating privilege and other enhanced criminal sanctions if you are convicted of violating Section 3802(a) of the Vehicle Code.

Penalties for Refusal to Submit to BAC Testing in Chester County

Pennsylvania uses a tier system for DUI offenses. The three levels of DUI are:

General Impairment — .08 to .099 BAC
High BAC — .10 to .159 BAC
Highest BAC — .16 and above

The levels of punishments increase for DUI convictions with higher BAC levels, but it is important to understand that refusing to submit to chemical testing can make you subject to the highest BAC penalties. If you have no prior DUI offenses, penalties can include:

License suspended for 12 months
Prison sentence of 72 hours to six months
Fines of $1,000 up to $5,000
Alcohol Highway Safety School
Possible court-ordered treatment

If you have one prior DUI offense, penalties may include:

License suspended for 18 months
Prison sentence of 90 days to five years
Fines of $1,500 up to $10,000
Alcohol Highway Safety School
Possible court-ordered treatment
Ignition interlock systems installed for one year on every motor vehicle you own, operate, or lease

If you have two or more prior DUI offenses, penalties can include:

License suspended for 18 months
Prison sentence of one year to five years
Fines of $2,500 up to $10,000
Possible court-ordered treatment
Ignition interlock systems installed for one year on every motor vehicle you own, operate, or lease

Pennsylvania Refusal to Submit to BAC Testing Defenses

While charges for DUI and refusing to submit to chemical testing may feel daunting, there are several defenses that can result in those charges being reduced or even dismissed. Such defenses may include, but are not limited to:

Misunderstanding by police officer or yourself led to incorrect recording as refusal
Police officer did not read you O’Connell Warning or notify you of consequences
Police officer had no probable cause to pull you over or suspect you of DUI
You were not driving
You were physically unable to provide a sample and officer did not provide alternative test

Find the Best Refusal to Submit to BAC Testing Lawyer in West Chester

If you were arrested for DUI and refused to submit to chemical testing, you should contact a criminal defense attorney as soon as possible. Ciccarelli Law Offices defends clients against drunk driving charges in such Chester County communities as West Chester, West Goshen, Phoenixville, Coatesville, Easttown, and West Caln.

We also help people in surrounding area like Lancaster County, Montgomery County, and Delaware County as well as the greater Philadelphia area. You can call our firm today at (610) 692-8700 to receive a free consultation.