What Should I Do If The Police Ask For A Blood Or A Breath Test?

Regarding police officers asking for a blood or breath test, the law in this area just changed. A U.S. Supreme Court case came down that changed the way police officers must deal with these tests. We’ll start with the breath test; it is the least evasive test. With the breath test, the police officer can ask you to perform this test, and they would take you either to a hospital or a local police station where the breath machine is located and they can ask for the test if they believe they have probable cause. Where they determine probable cause is the way you were driving, the field sobriety tests that you may or may not have completed, and through a portable breath test that they use on the side of the road. The breath test that can be used for legal purposes is a much bigger machine than the portable one.

That test can be asked for and the police officer does not need a warrant to administer a breath test. If you are asked to give a breath test without a warrant, that’s still legal. You would have to provide a breath test, or if you refuse to do so, then you could face criminal penalties for the refusal as well as a civil penalty of a loss of your license civilly just for refusing to give the breath sample. The other type of test is the blood test. Basically, the same factors apply; they have to find probable cause, and they will either transport you to a facility that has a phlebotomist available to draw the blood or they’ll take you to a local hospital to draw the blood. Now, here, because this is a more evasive test where they’re actually piercing the skin, the Supreme Court has said that you need a warrant to get the blood for testing unless the individual gave knowing, intelligent, and voluntary consent for the testing.

What the officer will do is read you a form that has some rights on it and then you either agree to or refuse to give a sample for the test. They’ll read the same form to you if you attempt to refuse the breath test as well. After reading that form, if you refuse, that’s when they will inform you of the one year license suspension on a criminal penalty that will take your license for a year. But in addition to that, people need to understand that you will also be facing possible criminal charges for receiving the test as well. However, with the blood test, currently the law is in reflex because the court is not quite sure how the warrant requirement reflects on valid refusal.

What Are The Consequences Associated With A Test Refusal?

If you refuse to take a test, the first thing that will happen is the officer should read you what is known as the DL-26 form which is also known as the O’Connor warnings. These warnings are in place to inform you of your rights and lack of rights during the testing phase of a possible DUI. During this phase, you actually have no right to talk to an attorney, and you have no right to contact anyone else to make the decision on whether or not you should refuse. If you request to do either of these things, then legally speaking you have automatically refused according to this O’Connor Warnings form. This form does not inform you of your right to a warrant. There is actually an issue with that right now with the courts.

The police must inform you at least of the rights that are on this form. Some courts have determined that makes your refusal knowing, others have determined that it does not. If you do refuse, the consequences of the refusal are that the Pennsylvania Department of Transportation will suspend your license for a minimum of 12 months. It could actually be up to 18 months depending on if you have prior DUIs in your past, but you’ll get a minimum license suspension of 12 months The U.S. Supreme Court has determined this is totally legal. Additionally, your refusal can be used against you for criminal purposes, and can be used to charge you with the DUI; and then they can inform the court that you refused the tests. Clearly, there are consequences of a refusal; not only civilly, but it can be used against you criminally as well.

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