Understanding the Consequences of Refusing a Breathalyzer or Blood Test in Pennsylvania

Being pulled over or stopped at a checkpoint on suspicion of driving under the influence (DUI) can be an overwhelming experience. One particularly confusing part of the process comes after a driver is arrested and taken to the police station, when police ask the driver to submit to a chemical test via a breathalyzer machine or blood draw.

Most drivers in that situation will ask: “Do I have to agree to this testing?” The answer to that simple question is “no.” A driver does not need to agree and cannot be forced to blow into a breathalyzer or have blood tested. The second question most drivers have is: “Why would I agree to a test? Wouldn’t that provide evidence against myself?” The answer to that question is not simple.

Many drivers incorrectly believe that refusing testing will prevent them from being prosecuted for DUI. However, in Pennsylvania this refusal can lead to serious consequences, even if the driver is never convicted of DUI. It’s therefore essential for drivers to understand Pennsylvania’s implied consent law.

What does implied consent mean? Simply put, Pennsylvania law states that when a person gets a driver’s license they implicitly agree to submit to testing if they are ever arrested for DUI. While this does not mean a driver can be physically forced to take a test, it does mean that a driver can be punished for refusing. The primary punishment is suspension of their driver’s license.

After a driver is placed under arrest for DUI and taken to the station, police will read them a standard DL-26 form. The notice informs the driver that they are being arrested and lists the nature of the charges, the request for chemical testing, and the consequences of refusing testing. Once the form is read aloud in its entirety by the officer, the driver will be asked to sign and will be asked if they agree to be tested. Anything other than an unequivocal “yes” to that question can be deemed a refusal. A driver

• does not have the right to read over the DL-26 form,
• does not have the right to say “no” and then change their mind later,
• does not have the right to ask additional questions,
• does not have the right to choose between a breathalyzer and a blood test, and
• does not have the right to ask for an attorney or legal advice before consenting.

A driver also does not need to actually sign the refusal form (the officer may write that it is a refusal if the driver says anything other than “yes”). Once that refusal form is completed by the police, it’s sent to PennDOT, which then issues a notice suspending driving privileges effective on a future date. The period of suspension is 12 months, unless the driver has previously refused testing or been convicted of DUI, in which case it’s 18 months. The license suspension is in addition to any license suspension the driver may receive for the DUI itself, and the suspension happens even if the driver is later found not guilty of the DUI or the charge is dismissed. Once a driver’s license is suspended, the driver must pay a fee of at least $2,000 to restore it.

There is an appeal process. When a driver receives a license suspension letter, it will include information regarding the right to appeal. An appeal of a license suspension must be filed at the courthouse in the county where the arrest took place within 30 days of the date of the notice. The appeal requires a filing fee of several hundred dollars and sometimes attendance at multiple court dates. While there are occasionally appealable issues (such as whether the length of the suspension is proper or whether the officer in fact read the correct form in its entirety), most license suspension appeals are unsuccessful. In most cases an officer will only need to testify that the form was read to you and that you did not agree to testing. Very often, this refusal will be captured on body camera and played in court. For some people, one of the advantages of filing the appeal is to stay the license suspension until a later date.

A refusal does not prevent prosecution. Even if the police do not obtain a breathalyzer or blood test, a driver may still be prosecuted for DUI. While having testing results with the required level of alcohol (or any amount of drugs) in a driver’s system is automatically a DUI, a driver still can be convicted if the prosecution can show that the driver was incapable of driving safely due to alcohol or drugs.

This can be shown in court in various ways and usually involves the testimony of an officer or the body or dash camera of an officer showing intoxication at the time of driving. Key evidence can include swerving, failing to have lights on, failure to signal, speeding, or causing an accident. Other evidence may include a driver’s demeanor at the time of the arrest, such as confusion when responding to questions, the odor of alcohol, unsteadiness, bloodshot eyes, slurred speech, or the presence of alcohol or drugs in the driver’s car. Additionally, the fact that a driver refused a breathalyzer may be used against the driver in court, with the prosecutor arguing that the driver refused testing because they knew they had ingested alcohol or drugs.

All drivers should keep in mind that, if they are stopped on suspicion of DUI, testing at the scene of a traffic stop (before a DUI arrest) and testing at a police station (after a DUI arrest) are different and have different consequences. On the scene, police departments use a variety of sobriety testing, such as requiring a driver to walk a straight line or stand on one leg. Police also may ask a driver to take an on-scene breathalyzer. This is prior to the arrest when the officer suspects the driver might be under the influence of drugs or alcohol. A driver may refuse to submit to that on-scene testing, and the on-scene breathalyzer results cannot be used in court to prove a driver is guilty of DUI. The police do not read a form on scene, and refusal does not trigger any license suspension. The test results can be used only to inform the officer’s decision whether he/she has probable cause to arrest the driver for DUI.

Commercial drivers should keep in mind that, because of the special nature of their Commercial Driver’s License, different rules may apply, even if that driver is not operating a commercial vehicle at the time of the DUI arrest. When driving a commercial vehicle, the legal blood alcohol level is .04 and below, rather than .08 for driving a personal vehicle.

Additionally, having a CDL requires the police to read a different form, which informs a driver of effects of a refusal on their personal driving privileges and their CDL. Refusing to submit to testing results is an automatic CDL disqualification of one year, or a lifetime disqualification if it is a second refusal or if the driver has a prior DUI. Also, a CDL driver will have to file two separate appeals, one for the disqualification of the CDL and one for the suspension of the standard driving license.

If you or someone you know are facing a DUI charge involving a test refusal, or a license suspension or CDL disqualification due to a refusal, it is imperative to seek immediate legal advice. Contact the attorneys at Willig, Williams & Davidson at 215.656.3600 so we can help you understand your options, evaluate your defenses, and determine the best way to respond to the criminal charge and any license suspension.