Please read our blogs titled Best DUI Lawyer In Pennsylvania and How to Find The Best DUI Lawyer in Pennsylvania.
Legal Blog
As experts in our craft we like to provide our past, current and future clients, as well as our community with resources to better help them navigate the complex world of criminal law. Whether you're seeking guidance in one of our practice areas, looking for practical tips to navigate legal challenges or simply finding a deeper understanding of your rights, our blog is designed to be a valuable resource to you.
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Please note, our legal blog is intended for informational purposes only. While we strive to offer accurate content, the legal landscape is constantly changing and no blog can substitute personalized advice and guidance of a qualified attorney. For a free consultation, please contact us directly.
Are There Criminal Consequences for Refusing A Breath Test?
If you refuse a breath test in Pennsylvania and are charged with DUI, the charges will be under Tier III, the highest tier possible for an alcohol-related DUI. A conviction for a Tier III DUI has a mandatory minimum sentence that ranges from as little as three days in jail to as much as one year in state prison. What mandatory minimum applies to a Tier III conviction depends on how many DUI convictions you have had in the past 10 years. See our resource section for more information on the possible sentences for Tier III offenses. resources page
Are There Criminal Consequences for Refusing A Blood Test?
If you refuse a blood test in Pennsylvania and you are later charged with DUI, the DUI charges will be under Tier I, the lowest tier possible for an alcohol-related DUI. If there was also an accident involved in your case where someone was injured or there was some damage to property, the DUI charges will be under Tier II, the next highest tier possible for an alcohol-related DUI. If you are charged with DUI for being under the influence of a controlled substance or some other drug, the DUI charges will be under Tier III, the highest tier. The police can apply for a search warrant to get your blood to conduct testing. If you refuse a blood test after a search warrant is issued for your blood, the DUI charges will be under Tier III, the highest tier possible for an alcohol-related DUI. See our resource section for more information on the possible sentences for each of the Tiers. resources page
Will a conviction for a DUI in another state show up on my record in Pennsylvania?
A DUI conviction from another state will not show up on a standard Pennsylvania Criminal History check. However, that conviction will show up on a nationwide criminal history check. When the Police search your criminal history, they can access criminal records from other states by using your name, birth date, social security number, and other identifying information which might be associated with your criminal history.
The Police can, and most often do, search for driving records in other states. A conviction from another state for a DUI will usually also show up on that State’s driving record, as most DUI convictions require some type of driver’s license suspension. Whether a DUI conviction from another State shows up on your Pennsylvania Driving Record depends on several factors, including whether this is your first DUI offense. As of 2020, if you are convicted of a DUI in another state, PennDOT will not take any action on your license if that out of state conviction is the first DUI conviction that you have ever received.
How Long Will A Conviction for DUI Stay on my Criminal Record?
In Pennsylvania, if you are convicted of a DUI, just as with any other conviction, it will stay on your criminal record forever. However, just because you have a DUI conviction on your record does not mean that everyone will be able to see it forever. There is the possibility of having certain convictions on your record sealed from public view after ten years through the Clean Slate Act. Most DUI convictions are eligible to be sealed under this Act if you meet the requirements. If your conviction is sealed only certain limited groups of people, like law enforcement and certain employers, will be able to see the conviction on your record.
If you enter and successfully complete the ARD Program for a DUI the charge, it will be dismissed without a conviction. You can then apply to have the arrest and ARD placement expunged from your Pennsylvania Criminal Record. The expungement is not automatic and if you do not complete the paperwork for the expungement the arrest and ARD placement will remain visible on your criminal record.
A DUI conviction will stay on your Pennsylvania driving record for life. If you have a license from some other State, you will need to check with that State to see if the DUI conviction will appear on that State’s driving record.
The only way to get a conviction for a DUI, or any other type of conviction in Pennsylvania removed from your criminal record is to receive a Governor’s Pardon. There is a process in Pennsylvania to apply for a Governor’s Pardon. You can find more information on the process to apply for a Governor’s Pardon online at bop.pa.gov. If you are one of the lucky few who receive a pardon, then you will be eligible to have to conviction expunged from your record.
Were My Rights Violated Because I Was Not Read My Rights?
The first thing people need to understand is that you are not legally obligated to do a whole lot at a traffic stop. You should be cordial and respectful with the officer and you want to comply with their commands. If they ask you to turn the car off or get out of the vehicle then comply and do that. However, your only legal duty in the state of Pennsylvania is to provide your license, registration, and proof of insurance. You do not have to say or provide anything else. If the police are asking you “Why did I pull you over,” you do not have to answer that. You don’t have to speculate on what you may or may not have been doing that was illegal. This also goes to the Field Sobriety Tests that offiers may ask you to perform. You can choose to decline these tests. There are a various numbers of reasons why you might decline to do those tests. However, if the officer asks you to give a breath or blood test, there are ramifications for declining or refusing to take those tests.
There are three different levels of custody. Each level bring new rights and protections for you. Just because you were pulled over and the officer is asking you questions does not mean you have to be “Mirandized” or “read your rights”.
The lowest level is a “Mere Encounter” is where you happen to come into contact with a police officer on the street or driving down the road. This is simply a mere encounter with the officer; the officer was not looking for you, you both just happened to be there at the same time. Basically, your only obligation here to the officer is if they ask for identification, you must provide it. Other than that, you do not have to do anything else for the officer or answer any of their questions.
The next level is an “Investigatory Detention”. This is your typical traffic stop where you are pulled over. The officer has some reasonable belief that you may have committed some type of offense. They can legally briefly detain you to investigate that offense. This gives them a little bit broader powers to detain you for a period of time to determine whether or not a law has been violated. They are allowed to investigate what law they believe you broke until they determine whether they have enough evidence to determine whether a crime has been committed. At that point, you are detained, but your rights have not fully kicked in at this point. Many individuals get “investigative detention” confused with the next level, which is called “custodial detention.” While it is true that you are being detained with “investigative detention,” it’s only for investigative purposes. At this level the officer does not have to “mirandize” or “read you your rights” and you do not have to answer any questions.
The highest level is “Custodial Detention.” This is the equivalent of a full blown arrest. You are not free to leave and the officers at this level must read you your rights before they start to question you. In other wards now you need to be “Mirandized”. What this means is that you can be in custodial detention and not receive you Miranda Rights as long as the police are not asking you questions about the case. Once the officers start interrogating you, then your rights apply and they must notify you that you have the right to remain silent and the right to an attorney. In addition at this level you are not required to answer any of their questions.
Regardless of whether or not you were “Mirandized” or “read your rights” you always have the option and right to remain silent and not answer any questions asked by the police.
What Happens When I Get A DUI With An Out Of State License?
For individuals who do not have a Pennsylvania driver’s license, you need to be very careful when you receive a DUI in the state of Pennsylvania. If you are convicted of a DUI in Pennsylvania, Pennsylvania cannot suspend your out of state license but what they will do is suspend your driving privileges in the state of Pennsylvania. The Pennsylvania Department of Transportation will send you your suspension information telling you to turn PA your driver license into them. Since you do not have a PA license you need to fill out a PennDOT form that says, “I acknowledge my suspension in the state of Pennsylvania” and state on that form that you are not licensed in Pennsylvania. You will then send this form into PennDOT instead to your driver’s license. PennDOT will hold on to that form until your suspension is up. You will also have to pay a restoration fee and complete any other requirements that are in the suspension information that PennDOT sent to you. Once everything is complete PennDOT will restore your driving privileges in the state of Pennsylvania.
The big catch here is if the state where your license is issued from finds out about the suspension in the state of Pennsylvania through reciprocity. If your home state has reciprocity with PA your home state would be made aware of the PA suspension and they could also suspend your license. Pennsylvania can only suspend you in the state of Pennsylvania. The state that issued you your license can suspend your license for an offense that you committed in the state of Pennsylvania. The length of that suspension is dependent on the laws in that particular state. Your license could be suspended for the same amount of time as Pennsylvania or they could actually suspend you for a longer period of time depending on their laws.
What Should I Do If Asked To Take A BAC (Blood Alcohol Content) Test?
A BAC test is one of two chemical test allowed under Pennsylvania law for DUI offenses. If suspected of a DUI the police may ask you to submit to either a Blood Test or a Breath test. Both of these can be used to determine Blood Alcohol Content (BAC) level. The police can only ask for one of these tests if they have probable cause to believe you are under the influence of alcohol and are incapable of driving safely. Whether or not your refuse to submit to a BAC test is ultimately your decision, there are different consequences depending on the type of test requested by the police. Whether or not it is in your best interest to refuse the test depends on the type of test requested and on your personal history with previous DUI convictions.
If you refuse to agree to a BAC test – PennDOT can punish you through civil law by suspending your driver’s license for a minimum of 12 months. PennDOT does this by suspending your privilege to drive in Pennsylvania. If you have a Pennsylvania license you will be required to turn that license into PennDOT. If you have an out of state license you will have to submit a form acknowledging your suspension of driving privileges in Pennsylvania. If the state which issued your license finds out about the suspension they can suspend your license, but this depends completely on each individual state and their laws handling such matters. If you refuse a BAC test, the officer will have to fill out the refusal paperwork and mail this paperwork into PennDOT. There is sometimes a delay between the refusal and the filing so there is sometimes opportunity for an intervention before the filing with PennDOT occurs. If not then PennDOT will send you suspension paperwork and tell you when and where to turn in your license. This suspension can be appealed; however, there is a strict deadline of 30 days to appeal this suspension, determined by the ‘mail by’ date on the letter of suspension from PennDOT.
In addition to the civil license suspension, you will still be charged with a DUI. If you refused a blood test your offense will be the lowest tier of DUI. If you refused a breath test your offense will be increased to the highest tier of DUI. The Courts have made this distinction between Breath and Blood samples, stating that there is a distinction between capturing the air that you breath out and using a needle to puncture your skin to remove a blood sample. Thus if you are presented with a breath test it is almost always in your best interest to not refuse the test. If you do and are then subsequently charged and convicted of the DUI the charge will be to the highest level of DUI possible. With a breath test it is usually better to provide the sample as your results may be in a lower level or not above the legal level at all.
When a Blood test is requested each individual will have to make their own choice. If you are requested to take a Blood test and you refuse, your DUI charges will remain in the lowest level of DUI. This could greatly reduce the criminal penalties that you could be facing. However, you will receive the additional minimum 12 month license suspension from PennDOT for refusing the test. Where this really matters is when an individual is facing a second or subsequent DUI, as the lowest tier DUI can keep an individual in county jail, while the higher tiers could be state prison sentences. Thus whether or not you refuse a blood test will be your decision based on your own personal history and what you are willing to risk moving forward with the different punishments.
If you refuse the BAC test then there are no results for your lawyer to challenge in Court. In addition your refusal can and will be used against you by the District Attorney in an effort to get a conviction for the DUI offense.