Pennsylvania DUI: Refusal to Take a Blood, Breath, or Urine Test

In Pennsylvania, if you get pulled over for a DUI (driving under the influence) and the officer asks you to take a blood, breath, or urine test, do you have to take one? What happens if you refuse?

Implied Consent

Pennsylvania law requires you to take a blood, breath, or urine test if you are arrested for a DUI. Pennsylvania’s “implied consent” law says that if you are lawfully arrested by an officer who has probable cause to believe that you have been driving under the influence, then you consent to taking a chemical test of your blood, breath, or urine for the purpose of determining your blood alcohol content (BAC).  The test must be taken within two hours of driving, but if the officer asks you to take a breath test, then he or she has to observe you for twenty minutes first.

If you choose to take a test and if you are later convicted of a DUI, then you have to pay for whatever test the officer asked you to take. Once you take a test, however, you have the right to additional tests taken by a medical professional of your choice. All of these tests can be used in court, either in your favor or against you.  

Also, you could be arrested for a DUI even if you are not driving. If you are operating or have actual, physical control of a vehicle while under the influence, then that can be enough for an officer to arrest you. In Pennsylvania, the terms “operating” and “actual physical control” are basically the same. They generally mean that the driver is in the vehicle and could make it move, even if the driver is not trying to move the care when the officer finds him. For example, a driver realizes he has had too much to drink so he pulls over to sleep it off. He leaves the keys in the ignition and the radio on. The officer finds him slumped over the wheel, wakes him up, smells alcohol, and arrests him. This was enough for a Pennsylvania court to convict the driver of a DUI. (To read more about this and what it means to operate or be in actual physical control of a vehicle, see the case Com. v. Williams, 871 A.2d 254 (2005)).

You can read Pennsylvania’s implied consent law in the Pennsylvania Vehicle Code 1547.

Refusing to Take the Test

 

1st Offense

2d offense

3rd Offense

Refusal to take test

1 year license suspension

18 month license suspension

18 month license suspension

Once you are arrested, the officer should tell you that your license will be suspended if you refuse a test. He or she should also tell you that if you are later convicted of a DUI – even without the results from a chemical test – you will have to accept penalties for both the refusal and for the DUI. Whether you choose to take a test or not, you have a right to a hearing to challenge your suspension.   

When you do refuse, the officer cannot make you take a test. There are a few exceptions, however. You must take a test if you were driving on a license that was already suspended because of an alcohol-related offense, or if you were involved in an accident where someone was seriously injured or killed.

For your first refusal, the suspension will last for one year. For your second or any subsequent refusal, or if you have had a prior DUI conviction, the suspension will last for 18 months. At your hearing, you could ask the court to let you have limited driving privileges during your suspension, but you would have to install an ignition interlock device on your car.

The consequences of refusal are found in the Pennsylvania Vehicle Code 1547 and 3805.

Should You Refuse to Take a Mandatory DUI Test in Pennsylvania?

It usually does not help you to refuse to take a blood, breath, or urine test when you are arrested. For a first DUI in Pennsylvania, you will be on probation for six months, have to pay a fine of $300 and to attend highway safety school, and you need to submit to drug or alcohol treatment requirements. The judge could sentence you to up to 150 hours of community service, too. This is more severe than a year-long license suspension for refusal. Still, refusing the test does not guarantee that you won’t be convicted – you could be found guilty of a DUI even if your refusal means that the state does not have proof that your BAC was over.08%, the legal limit for those over 21. In fact, the prosecution can use your refusal against you by arguing that you refused the test because you knew that you were intoxicated and guilty of DUI.

Get Help With Your DUI

If you have been arrested on a DUI charge in Pennsylvania or any other state, get help from an experienced DUI attorney. Unlike other traffic related charges, which might be worth fighting without a lawyer, conviction for a DUI has serious consequences – especially if the incident involved injury to people or property, or if it’s your second or subsequent DUI. To avoid or reduce the consequences, your best bet is to find an attorney who is knowledgeable about your state’s laws and about how the system works in your county’s court.

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