Refusing A BAC Test after a DUI Arrest in Chester County
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.