Implied Consent: Refusal to Submit to DUI Testing in Pennsylvania
Pennsylvania’s implied consent law, often referred to as the O’Connell Warnings, requires that all drivers submit to a chemical blood alcohol content (BAC), urine, or a post-arrest chemical breath test (as opposed to a portable, roadside breathalyzer test), when a police officer, who has probable cause to believe that the driver is under the influence of alcohol or a controlled substance, requests that the individual submit to the tests. Under 75 Pa.C.S. Section 1547(a), all people who drive, operate, or are in physical control of motor vehicles are considered to have given their implicit consent to submit to blood, urine, or breath tests for the presence of alcohol or drugs, as a condition of maintaining a driver’s license. When an individual is arrested on suspicion of DUI, the police officer will ask him to submit to either a blood draw or a breathalyzer test at the police station, barracks, or a medical facility. Law enforcement officers typically use preliminary breath tests and other field sobriety tests as diagnostic tools to assist them in determining whether to make an arrest for DUI.
Many drivers who are pulled over by the police on suspicion of DUI are not aware that they are not legally required to participate in field sobriety tests at the scene of their arrest. Police officers often tell drivers that a preliminary alcohol screening test is required, but the law does not require anyone to submit to this roadside breath test or any other roadside field sobriety tests. Refusal to submit to a preliminary breath test or any roadside field sobriety test is not illegal.
Standard field sobriety tests include such things as the horizontal gaze nystagmus (eye movement), the walk-and-turn test, the one-leg stand test, heel-to-toe test, finger-to-nose test, and the alphabet recitation test. These tests have faced criticism for their lack of reliability as a true measure of intoxication. These include the excessive difficulty of the tests; their susceptibility to error due to weather or roadside conditions; or the individual characteristics of the individual, such as age, weight, or physical impairment; risk of danger from exposure to moving traffic during administration of testing; and the subjectivity or operator-error of the officer administering the tests.
To guard against any infringement upon one’s civil rights, motorists who are pulled over on suspicion of drinking may request to speak to a lawyer. Once an individual invokes this right, police are obligated to stop all questioning and information gathering procedures, including field sobriety tests.
In Pennsylvania, an individual’s license will be suspended for refusing to take the post-arrest chemical blood, breath or urine tests, even if she successfully defends against the DUI in court. In addition to any criminal penalties the individual will face if convicted of a DUI, the motorist can face up to 18 months of license suspension. The implied consent statute requires that the police officer inform the motorist, before asking him to take the test, about the consequences resulting from his refusal. Pennsylvania implied consent penalties include the following: for a first offense – one-year license suspension; for a second offense – an 18-month license suspension; and for a third offense – an 18-month license suspension.
If you find yourself in this situation, contact the criminal defense lawyers at Tanner Law Offices to determine whether you can pursue a positive outcome for your Implied Consent penalties and your DUI charge. Please contact our office at 717-731-8114 to schedule a consultation to discuss your case.