September 11, 2017By Brian Manchester
Pennsylvania law in this area has been changing in the past two years. Most recently the law was changed on July 20, 2017. Whether or not you refuse to submit to a chemical test is ultimately your decision, there are different consequences. Whether or not it is in your best interest to refuse the test depends on the type of test requested and your personal history with previous DUI convictions.
In Pennsylvania, the police can only request two different types of tests when they are attempting to determine your blood alcohol level for criminal purposes. The officer can request either a breath test* or a blood test. The officer can only ask for one of these tests after they believe they have probable cause that you are under the influence and are incapable of driving safely.
*Quick note. The portable breath test device given at the side of the road can be refused with no license or evidence consequences. It is the breath test given at a police station or DUI processing center that if refused has the license and evidentiary consequences and is the breath test we refer to in this blog.
If you refuse to agree to a chemical test, PennDOT can punish you through civil law by suspending your driver’s license. Or more accurately PennDOT can suspend 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 your state in which your license is issued find out about the suspension that can suspend your license, however this depends completely on each individual state and their laws on how they handle out of state suspensions. When you refuse the office 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 thus there is sometimes the opportunity of an intervention before the filing.
In addition to the civil license suspension, you will still be charged with a DUI. If you refused a blood test your punishment will be the lowest tier of DUI. If you refused a breath test your punishment 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 do not refuse. If you do you will receive an increased punishment to the maximum level of DUI possible. With a breath test, it is always better to provide the sample as your results may be in a lower level or not above the legal level at all. Breath tests are also scientifically unsound and can be challenged. However, blood tests have many issues as well that can be seized upon by a properly trained lawyer.
When dealing with a Blood test this is where each individual will have to make their choice. If presented with a Blood test if you refuse you remain in the lowest level of DUI, thus this could greatly reduce the criminal penalties that you could be facing. However, you will receive the additional license suspension through civil law with PennDOT. Where this really matters is when an individual is facing a second or greater DUI as the lowest DUI can keep an individual in county jail, while the higher levels will 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 can deal with moving forward with the different punishments.
However, if you refuse the chemical test the results cannot be challenged in Court. In addition, your refusal can and will be used against you by the District Attorney to get a conviction for the DUI offense. The law allows a jury to be instructed that a refusal can be considered as evidence of guilt.
It is extremely important to contact an experienced law firm right away if you or someone you know is facing criminal charges in Pennsylvania. If you, your son, daughter, or loved one in Pennsylvania has been arrested for a crime in state or federal court in Pennsylvania you need legal representation. Here at Manchester and Associates, we represent people across the Commonwealth of Pennsylvania. For a strategy session, we can be contacted at 1-800-243-4878.
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