Driver’s Consent – What Happens When You Refuse Alcohol or Blood Testing?
Whenever you exercise your privilege to drive or control any vehicle in Pennsylvania, you have implicitly consented to breath, blood, and/or urine testing. The Pennsylvania law that sets out all of the rules regarding breath, blood, and urine testing for drivers is called the Implied Consent Law. No one can force you to submit to testing—you do have the right to refuse. However, in order to preserve public safety and to encourage cooperation in testing, the law punishes those who “revoke” their implied consent by suspending their drivers’ licenses for up to 18 months.
A law enforcement officer who has reasonable grounds to believe you have been driving under the influence (DUI) of alcohol or drugs can require that you submit to testing. Testing is also mandatory for any driver who is caught driving while under suspension for a previous DUI violation. Any driver sentenced to use an ignition interlock device (an electronic device designed to prevent an intoxicated person from starting his or her car) must also submit to breath or blood testing if he or she is caught driving a vehicle without an interlock device. In an accident involving a death or an injury to any person requiring hospital treatment, all drivers can be required to submit to testing.
Testing used to be required only for drivers of motor vehicles, but the Pennsylvania statute was amended to require testing for drivers of any vehicle. This expands the pool of drivers to include those on bicycles, scooters, skateboards, and similar modes of transportation. The term “vehicle” includes cars, trucks, motorcycles, snowmobiles, dirt bikes, and all‑terrain vehicles. Horses are not considered to be vehicles, but horse‑drawn carriages and carts are defined as vehicles.
What Are Your Rights?
If a law enforcement officer has reasonable grounds to require testing, he or she will request your cooperation in testing. If you decline, the officer will issue a detailed warning that your continued refusal to submit to testing will result in a one‑year or longer suspension of your driving privileges. Even if you are completely sober, you will suffer the suspension of your driving privileges if you do not cooperate. Most suspensions for test refusal are for 12 months. An 18‑month suspension is imposed on drivers who have a prior record of convictions for DUI and on drivers who have previously refused testing.
You do not have the right to consult with an attorney before breath or blood testing. You do have the right, after submitting to testing, to have your own doctor conduct a separate test. Because the human body constantly metabolizes alcohol and drugs, prompt testing is critical in order to capture the actual levels of alcohol or drugs present at the time you were pulled over. The law recognizes your right to counsel upon your arrest, but it does not give you the right to delay testing until your attorney or doctor arrives.
Refusal to Test
Several recent Pennsylvania appellate cases shed light on how the courts respond in regard to testing‑refusal cases. A woman who ran off the road and severely damaged her car was questioned by a state trooper in a nearby home where she had been taken by local residents. She answered the trooper’s questions about the accident, claiming that she had swerved to avoid a deer. She had a towel over her head and some visible cuts on her face. Because she smelled of alcohol and admitted to drinking two alcoholic beverages, the trooper requested that she submit to testing. She did not respond. As she was being placed into an ambulance, on a gurney, the trooper spoke to her several times, requesting that she submit to testing. She did not respond. In challenging her license suspension, the woman testified that her injuries were serious, requiring 68 stitches and three days’ hospitalization. She also testified that she suffered a severe concussion in the accident and was unconscious when the trooper asked her to submit to testing. The trooper testified that she was conscious when he requested the testing and when he warned her of the consequences of her refusal. He testified that she had spoken to him about the accident and that she simply did not answer his repeated requests about the testing. The court found that the trooper’s account was more credible, noting that the woman did not present any medical evidence to corroborate her claims that she was too injured to understand the trooper’s requests.
In another case, a man’s doctor’s testimony helped him avoid the penalty of license suspension. The man was arrested on suspicion of DUI after he failed to stop at a stop sign. The arresting trooper smelled alcohol on the man’s breath and arrested him and took him to the police barracks for breath testing. The man made four or five attempts to blow into the breathalyzer machine but never provided a sufficient breath sample for the machine to display a result. The man told the trooper that he had asthma. The trooper processed the incident as a refusal to cooperate in the testing, and the man’s driver’s license was suspended. On appeal from the suspension, the man’s doctor testified that he had treated the man for asthma for more than 10 years. The doctor further explained that the man also suffered from chronic obstructive pulmonary disease for several years and could not produce a breath sample. The court found that once the man had accurately disclosed his asthma, the trooper should have arranged for blood or urine testing. Because the facts supported the man’s claim that he could not produce enough breath for the testing, and because his doctor confirmed that he had asthma and other serious respiratory problems, the court refused to uphold the license suspension.
Finally, in a case where a man claimed that he never should have been required to submit to testing, the court found that the police officer involved did have grounds to request testing. The police officer found the man unconscious in the driver’s seat of a car parked at a McDonald’s restaurant. The car engine was running and the headlights were on. The man was slumped over the center console with his face inside a McDonald’s bag on the passenger seat. Three bottles of prescription pills, two bearing the man’s name, were spilled over the front seats of the car. The man became belligerent when the officer woke him, spitting food and slurring his speech. He was aggressive with emergency room workers and refused blood testing. The man appealed his license suspension, claiming that he had become impaired from the prescription pills after arriving at the restaurant and that he had not driven the car while impaired. The court found that testing is required when the driver is found in physical control of a vehicle and that it is not necessary that the police officer observe the vehicle moving.
While positive testing can produce solid evidence of a driver’s intoxication, drivers must think carefully before refusing testing. With few exceptions, drivers who refuse testing lose their driving privileges, sometimes for a longer period than would have resulted from a DUI conviction.