Can You Refuse a Blood Alcohol Test for DUI in Pennsylvania?
In Pennsylvania, driving on the highways in the Commonwealth is considered a privilege, not a right. By virtue of having a driver’s license, you are therefore impliedly consenting to submit to a blood or breath test upon request from a police officer who suspects that you have been driving under the influence. Well, what happens if I don’t give my blood? As a penalty, the Pennsylvania Department of Transportation (“PENDOT”) will suspend your driver’s license for up to 18 months. However, this suspension is NOT automatic. You have the right to APPEAL the suspension and request a hearing before a Judge.
If you refused a police officer’s request for a blood alcohol test in Pennsylvania, our Bensalem DUI defense lawyers can help. Call Young, Marr, Mallis & Associates at (215) 372-8667 for a free consultation.
What Happens If an Officer Does Not Read the Implied Consent Warnings?
Whenever the police have arrested someone for suspicion of driving under the influence, the officer will transport the driver to either a local hospital or to the police station for a blood or breath sample (also known as, “chemical testing”). Prior to administering chemical testing, the police are required to read you implied consent warnings as stated by PENDOT. The warnings must be read verbatim, and they must be signed by the driver acknowledging that the warnings have been read. The warnings read as follows:
- You are under arrest for driving under the influence of alcohol or a controlled substance;
- I am requesting that you submit to chemical testing;
- If you refuse to submit to the chemical test, your driver’s license will be suspended for at least one year;
- You do not have a right to speak with an attorney or anyone else before deciding whether to submit to chemical testing.
Right to Appeal a Driver’s License Suspension in Pennsylvania
As mentioned above, the penalty for refusing to submit to chemical testing is a license suspension by PENDOT. After the refusal, the officer will then notify PENDOT that the driver has been arrested for driving under the influence and refused to submit to chemical testing. PENDOT will then mail you notice that your driving privileges are suspended and you must surrender your driver’s license. However, the driver has an absolute right to appeal PENDOT’s decision to suspend your driver’s license. The appeal must be taken within 30 days of notice of the suspension. Once appealed, your driver’s license suspension will be put on hold, and you will be able to continue to drive until you have your day in court.
How to Win a License Suspension Appeal
Once the driver has properly appealed PENDOT’s decision to suspend your driver’s license, the driver will be granted a hearing in a court of law before a judge to determine whether the license suspension is proper.
There are two issues the court will look at. First, the court will look to whether the police officer had reasonable grounds to believe that the driver was actually driving under the influence. The rationale behind this rule is that the officer must have some reasonable basis for requesting the driver to submit to chemical testing. For example, maybe the officer saw the driver swerve in the road and then smelled the odor of alcohol coming from the driver’s breath. In this instance, it is reasonable for the officer to believe that the driver is driving under the influence and, thus, it is reasonable for the officer to request the driver to submit to chemical testing. If, however, the officer pulled someone over for swerving and did not smell an odor of alcohol or see any signs or indication of impairment, the Court may view the officer’s request for chemical testing as unreasonable in which case the license suspension would be invalid. The Court will also look to whether the officer read the driver the above-mentioned implied consent warnings and whether the driver refused to submit to chemical testing.
Assuming that the officer had reasonable grounds to believe that the driver was driving under the influence, the Court will then look to whether the driver “knowingly and consciously” refused to submit to chemical testing. This second issue is really where things get interesting. Let’s say that the driver was involved in a bad car accident, and the driver hit his or her head very badly. Let’s further assume that the driver was brought to the hospital where he or she was read the implied consent warnings and then said no to chemical testing. The question before the Court is whether the driver’s refusal to submit to chemical testing was knowingly and consciously made.
In situations involving car accidents in which the driver was severely injured, the driver may be able to argue on appeal that he or she was not of sound mind due to injuries sustained in the accident and, therefore, the refusal was not knowingly and consciously made. The Court, however, will take a very strict and narrow approach in deciding this issue. The driver will have to produce medical expert testimony to say that the injuries sustained in the accident are closely related to the driver’s inability to make a knowing and conscious refusal. In other words, the medical expert must be able to state that the driver’s mental state was not well enough to make a sound and conscious decision. Moreover, the medical expert must be able to say that the driver’s inability to make a knowing and conscious refusal had nothing to due with alcohol or drugs. In other words, the medical expert must be able to rule out alcohol or drugs. If this can be accomplished, then the Court will find that the driver was not of the right mindset to give a knowing and conscious refusal and, so, the license suspension will be deemed improper.
Pennsylvania DUI Defense Lawyers Offering Free Consultations
If you recently refused chemical testing after being arrested for a DUI, you have options – your license is not automatically lost! It is crucial that you contact an experienced Northeast Philadelphia DUI attorney who knows the ins and outs of PENDOT laws and can help you retain your driver’s license.
Call the Pennsylvania criminal defense lawyers of Young, Marr, Mallis & Associates at (215) 372-8667 today for a free consultation.