Pennsylvania’s implied consent law mandates that any individual licensed to operate a motor vehicle in the state must consent to chemical testing, including blood, breath or urine, to measure their blood alcohol content (BAC) if the police have reasonable grounds to believe they are driving under the influence of alcohol or a controlled substance (DUI).
Consequences of a Breathalyzer Refusal
Refusing to submit to chemical testing will result in the suspension of your driving privileges and will severely impact your ability to get to work, school, medical appointments and other important activities. It is important to have a knowledgeable DUI defense attorney on your side if you are charged with a chemical test refusal.
I have over a decade of experience providing skilled and aggressive representation to individuals facing the suspension of their driving privileges for chemical test refusal in Bucks County, Montgomery County and the surrounding counties. Contact me at (215) 752-5282 for a free initial consultation or fill out the confidential contact form for an immediate response. Appointments are available after business hours and on weekends.
Chemical Testing Procedures in a DUI Case
Before requesting chemical testing, the police must inform the driver of the following:
- You are under arrest for DUI
- The police are requesting a chemical test of your blood
- A chemical test refusal will result in a minimum 1 year license suspension
- You do not have a right to consult with a lawyer prior to testing
Meaningful Opportunity to Comply with Test
You will also be advised that you do not have the right to speak to an attorney prior to deciding whether to consent to chemical testing. A request to speak to a lawyer after receiving the chemical test warnings will be considered a refusal by the police. The police officer requesting the chemical testing is required to give the driver a “meaningful opportunity” to comply with the request. The police officer will proceed to ask the driver to sign a “DL-26b” form as proof that the driver received the warnings.
Examples of Behavior Considered as a Refusal
Generally, anything short of an unqualified, unequivocal agreement to submit to chemical testing by the police will be considered a refusal. Verbally advising the police officer that you are refusing chemical testing is an example of an express refusal. Examples of behavior considered by the police to constitute an implied refusal include:
- Providing insufficient breath samples
- Remaining silent after a request for chemical testing
- Sustained argumentative behavior after a request for chemical testing
- Requesting an alternative chemical test
Civil Penalties for Refusing Chemical Testing
- For a 1st offense, a refusal to take a chemical test will result in an automatic 1-year suspension of your driver’s license.
- An automatic 18-month suspension of your driving privileges will be imposed if you have a prior DUI conviction or if you have refused chemical testing in the past.
Consequences of Chemical Test Refusal when DUI is Charged
It is important to recognize that the driver’s license suspension imposed for a chemical test refusal will remain in effect even if your underlying DUI charge is dismissed or if you are found not guilty of DUI after trial or if you are accepted into the Accelerated Rehabilitative Disposition (ARD) pre-trial diversion program.
Consecutive Suspensions for Refusal and DUI Convictions
The driver’s license suspension imposed as a result of a chemical test refusal will be “stacked” on top of and run consecutive to any driver’s license suspension ordered as part of your underlying DUI charge. It is not uncommon to find yourself facing a 3-year driver’s license suspension as a result of a DUI conviction and a chemical test refusal.
License Suspension Appeal Hearing
In certain cases, it is possible to successfully appeal a driver’s license suspension resulting from a chemical test refusal. You have 30 days from the date you receive your notice of driver’s license suspension to file an appeal. The license suspension appeal hearing will take place in the Court of Common Pleas of the county where the arrest stop took place. At the hearing, the Pennsylvania Department of Transportation (PennDOT) will be required to prove by a preponderance of evidence the following:
- The driver was placed under arrest and the police had “reasonable grounds” to believe the driver was operating or in actual physical control of a vehicle while under the influence of alcohol or a controlled substance;
- The driver was asked to submit to chemical testing;
- The driver refused to submit to chemical testing; and
- The driver was specifically warned that a refusal would result in the suspension of his or her operating privileges.
Burden of Proof in a Chemical Test Refusal Hearing
The driver’s license suspension appeal will be granted if the PennDot fails to meet its initial burden of proof at the appeal hearing. Once PennDot has met its initial burden of proof, the burden of proof shifts to the driver to prove that his or her refusal was not “knowing or conscious” or that he or she was physically unable to take the test.
Chemical Test Refusal Defense
I will thoroughly investigate the facts and circumstances of your case to determine any available defenses to challenge the chemical test refusal license suspension in court. I will often retain a defense investigator to subpoena police dash-cam and body-cam video to establish our defense.
In some cases, I have been successful in proving that the police officer did not have reasonable grounds to place a driver under arrest for DUI by establishing that the driver did not display signs of impairment such as erratic or dangerous driving behavior prior to the vehicle stop by the police. In other cases, I have been able to establish that the driver was not provided with a meaningful opportunity to comply with the chemical test request by the police.
Medical Conditions Affecting Chemical Testing
I have frequently presented medical evidence at the driver’s license suspension appeal hearing to establish that the driver suffered from certain medical conditions that prevented him or her from taking the blood or breath test. Common examples include:
- Individuals with asthma and emphysema
- Hemophiliacs and those with a blood clotting disorder
- Individuals taking anti-coagulant medications
I can review the circumstances of your case and your medical history to determine whether a medical condition prevented you from completing the chemical testing requested by the police.
Factors Preventing a Knowing or Conscious Refusal of Chemical Testing
Establishing that a driver did not make a knowing and conscious refusal to submit to chemical testing will result in a reversal of a driver’s license suspension. There are many factors that can be presented during the driver’s license suspension appeal hearing to prove that the chemical test refusal was not knowing or conscious, including:
- Driver was suffering from severe injuries at the time of the chemical test warning
- Inaccurate statements made by the police during the chemical test warning
- Misleading statements made by the police during the chemical test warning
- Language barrier between the driver and the police officer
An adverse ruling at the chemical test refusal appeal hearing can be appealed to the Commonwealth Court of Pennsylvania. I can review the facts and evidence in your case to determine the most effective legal strategy.
Start with a Strong Defense
If you are facing a driver’s license suspension due to a chemical test refusal in Bucks County, Montgomery County or the surrounding counties, it is critical to act quickly to defend your rights and protect your driving privileges. Phone lines are open 24 hours a day at (215) 752-5282. Call today for a free initial consultation or fill out the confidential contact form for an immediate response.