Can I Refuse a Breathalyzer in Pennsylvania?
If you are stopped for suspected driving under the influence in Pennsylvania, you may be asked to submit to a breathalyzer or another form of chemical testing. Deciding how to respond can have consequences for both your driver’s license and a potential DUI prosecution.
Pennsylvania’s implied consent law gives drivers a statutory right to refuse certain chemical testing after a DUI arrest. However, exercising that right can result in a separate suspension of your driver’s license, and your refusal to submit to testing may be admissible as evidence in a criminal DUI proceeding.
That makes a breathalyzer refusal more complicated than simply deciding whether you want to provide police with a BAC reading. The type of test requested, whether you were formally arrested, what warnings police provided, and what happened during the stop can all matter.
What Is Pennsylvania’s Implied Consent Law?
Pennsylvania’s implied consent law provides that a person who drives on Pennsylvania roads is deemed to have given consent to certain chemical testing when the statutory requirements are met. The law applies to testing for alcohol and controlled substances.
However, implied consent does not mean that police can physically force every DUI suspect to submit to a chemical test. Pennsylvania law specifically provides a statutory right to refuse chemical testing after a DUI arrest. The important point is that refusal does not necessarily come without consequences.
The consequences can include a suspension of your Pennsylvania operating privileges and the use of your refusal as evidence in a DUI prosecution.
Because the criminal case and the driver’s license consequences are separate issues, a person can face a license suspension based on a chemical-test refusal even when the DUI charge itself does not result in a conviction.
What Happens If You Refuse a Breathalyzer in Pennsylvania?
The consequences of refusing a breathalyzer depend on the circumstances of the stop, the type of chemical test requested, your prior history, and whether PennDOT ultimately takes action against your operating privileges. The specific facts surrounding the refusal can also affect whether you have grounds to challenge the resulting suspension or other consequences.
You Can Face a Driver’s License Suspension
A refusal can result in a mandatory suspension of your Pennsylvania operating privileges. Under Pennsylvania law, a first refusal generally results in a 12-month suspension, while certain subsequent refusals can result in an 18-month suspension. Additional factors can affect how the suspension applies to a particular driver.
This suspension is a PennDOT consequence rather than simply another part of the criminal DUI case. As a result, the outcome of the criminal charge does not necessarily eliminate the consequences of refusing chemical testing.
For someone who depends on a vehicle for work, school, medical appointments, or family responsibilities, losing driving privileges can create significant practical problems.
Your Refusal May Be Used Against You
Refusing a chemical test does not necessarily prevent the prosecution from mentioning the refusal in court. Pennsylvania law specifically permits the admission of evidence of a chemical-test refusal in a criminal proceeding.
The prosecution may argue that a person refused testing because they believed the test would produce incriminating evidence. The defense, however, can challenge the circumstances surrounding the refusal and the conclusions the prosecution attempts to draw from it.
A refusal is evidence. It is not, by itself, proof that a driver was under the influence.
A Refusal Can Affect the Consequences of a DUI Conviction
Pennsylvania law also provides enhanced sentencing consequences in certain DUI cases involving refusal of breath testing or of blood testing obtained through a valid search warrant or other lawful authority. The applicable consequences depend on the offense charged and the defendant’s prior DUI history.
This is one reason it is important not to look at a refusal in isolation. An attorney evaluating a DUI case should consider the alleged impairment level, prior offenses, the type of testing involved, and the circumstances surrounding the refusal.
Is Refusing a Breathalyzer the Same as Refusing a Blood Test?
Not necessarily. Pennsylvania’s chemical-testing law covers different types of testing, including breath and blood testing. The circumstances under which a particular test is requested can affect the legal analysis. A roadside breath test, an evidentiary breath test requested after arrest, and a blood draw at a medical facility are not necessarily treated the same way.
The distinction matters because the procedures for each type of test can differ.
For example, Pennsylvania courts have recognized that a person arrested for DUI has a statutory right to refuse chemical testing under Section 1547. At the same time, law enforcement may seek a search warrant or rely on another lawful basis for obtaining a blood sample in appropriate circumstances.
If police obtained a blood sample after a refusal, the question is not simply whether you refused the initial test. An attorney should examine how the blood was obtained, whether police had the necessary legal authority, and whether the applicable procedures were followed.
Can Police Force You to Take a Breathalyzer in Pennsylvania?
Pennsylvania law gives a DUI arrestee a statutory right to refuse chemical testing. If an individual refuses a requested chemical test under the applicable statutory procedure, the law provides for consequences rather than treating the refusal itself as an independent authorization for police to simply administer the test.
That does not mean police are always unable to obtain chemical evidence after a refusal. Depending on the circumstances, law enforcement may seek a search warrant or rely on another legally permissible basis for obtaining a blood sample or other evidence. Pennsylvania courts have addressed the relationship between the statutory right of refusal and warrant-based testing.
If a chemical sample was obtained despite your refusal, the circumstances surrounding that testing should be carefully reviewed.
Can You Talk to an Attorney Before Taking a Breathalyzer?
This is an area where Pennsylvania’s implied consent law differs from what many people expect.
A person arrested for DUI does not have an unlimited right to delay chemical testing while consulting with an attorney. Pennsylvania courts have held that police must advise DUI arrestees of the consequences of refusing chemical testing, but the right to consult an attorney does not generally allow a person to delay the requested chemical test while deciding whether to submit.
This is different from the right to counsel during a criminal interrogation.
For that reason, someone who has been arrested for DUI should not assume that asking to call an attorney will stop the chemical-testing process or extend the time available to make a decision.
Does Refusing a Breathalyzer Help Your DUI Defense?
Refusing a breathalyzer does not automatically make a DUI case stronger or weaker. It changes the evidence available to both sides.
Without a chemical-test result, the prosecution may need to rely more heavily on other evidence, such as:
- The officer’s observations of your driving
- Statements you made during the traffic stop
- The smell of alcohol or other observations
- Field sobriety testing
- Body-camera or dash-camera footage
- Witness statements
- Evidence of alcohol or drug consumption
- The circumstances surrounding the traffic stop and arrest
That evidence can still be significant. A DUI prosecution does not necessarily depend on a particular BAC number.
At the same time, the defense may identify weaknesses in the prosecution’s evidence. For example, an attorney may investigate whether police had a lawful basis for the traffic stop, whether there was probable cause for the arrest, whether field sobriety testing was properly administered, and whether the prosecution can establish the elements of the charged offense.
The circumstances surrounding the refusal can also matter. Pennsylvania courts have recognized that the validity of consent and the circumstances surrounding chemical testing can become important legal issues.
What Should You Do After Refusing a Breathalyzer?
If you have already refused a breathalyzer or another chemical test, do not assume that your DUI case is lost. The next step should be understanding both sides of the case: the potential criminal prosecution and any driver’s license consequences.
Start by preserving information about the traffic stop and arrest. Write down what you remember about where you were stopped, what officers asked you, what tests were requested, what you were told about refusing, and what happened afterward. If there is video from the incident or other evidence that may be relevant, your attorney can determine how it should be obtained and reviewed.
You should also avoid discussing the circumstances of your arrest with people other than your attorney. Statements made after the arrest can potentially become evidence in a criminal case.
Most importantly, do not assume that a refusal means you cannot challenge the DUI charge or the resulting license consequences.
Can You Challenge a License Suspension for Refusing a Breathalyzer?
In some circumstances, a driver may have grounds to challenge a PennDOT suspension resulting from a chemical-test refusal.
The details matter. A license-suspension case can involve questions about whether police had reasonable grounds to believe the driver was operating a vehicle under the influence, whether the driver was properly arrested, whether the appropriate warnings were provided, whether a valid request for chemical testing was made, and whether the driver actually refused the requested test.
Pennsylvania courts have recognized the importance of the warnings provided to drivers facing chemical-testing requests. Police are required to inform an arrestee of the consequences of refusal so that the decision to refuse can be knowing and conscious.
Because PennDOT proceedings can involve separate deadlines and procedures, you should address a suspension promptly rather than waiting for the criminal DUI case to conclude.
How a Pennsylvania DUI Attorney Can Help After a Chemical-Test Refusal
A chemical test refusal can create issues that extend beyond the DUI charge itself. An attorney can review the circumstances of the stop and arrest, examine the evidence supporting the prosecution’s case, and determine whether there are legal grounds to challenge the DUI or related driver’s license consequences.
That review may include:
- Whether police had a lawful basis for the traffic stop
- Whether officers had probable cause to make the DUI arrest
- What type of chemical test was requested
- Whether the required warnings were provided
- Whether the refusal was properly documented
- Whether police later obtained a warrant for additional testing
- Whether video or other evidence contradicts the police report
- Whether field sobriety testing was properly conducted
- Whether the prosecution can prove the elements of the charged DUI offense
The goal is not simply to focus on the fact that a test was refused. A DUI defense requires looking at the entire investigation and determining whether the Commonwealth’s evidence establishes the charge beyond a reasonable doubt.
Protect Your Rights After a Pennsylvania DUI Arrest
Refusing a breathalyzer in Pennsylvania can have serious consequences, including a driver’s license suspension and the possibility that the refusal will be used as evidence in a DUI prosecution. At the same time, a refusal does not automatically establish that you were driving under the influence or determine the outcome of your criminal case.
The circumstances surrounding the traffic stop, arrest, request for testing, refusal, and any subsequent chemical testing all warrant careful review.
At Worgul, Sarna & Ness, Criminal Defense Attorneys, LLC, our attorneys defend clients facing DUI charges throughout Pennsylvania. We examine the evidence, investigate the circumstances surrounding the arrest, and look for legal issues that may affect both the criminal case and your driving privileges.
If you have been charged with DUI or have refused a breathalyzer or other chemical test, contact Worgul, Sarna & Ness at (412) 281-2146 or complete our online form to schedule a confidential consultation about your case.