Pennsylvania DUI- Post Arrest Testing

As a criminal defense attorney here in State College, Pennsylvania I am often asked by friends and clients what they should do in the event that they are stopped for DUI.  Answering this question requires a basic understanding of the “anatomy” of a DUI stop—how it works, what the Police officer is looking for, and what your rights are at each and every stage in the encounter.  To answer these questions, you must understand some basic concepts from the law of criminal procedure and how they bear on the three essential components of a roadside DUI stop.  The three components of a roadside DUI stop in my analysis are the following:  

  1. The initial roadside stop;
  2. Roadside testing including the PBT (portable breath test) and SFSTs (standard field sobriety tests);
  3. The arrest and post arrest testing (blood or breath)

This pages discusses the third of the three components in my analysis.  Click the links above to learn more about the initial roadside stop or roadside testing

The Arrest

If after pulling a vehicle over a police officer approaches the driver and makes observations that lead the officer to believe the driver is under the influence of alcohol— things like the smell of alcohol, bloodshot eyes, slurred speech, etc. — the officer will typically ask the driver to exit the vehicle to perform roadside tests.  As discussed here, at this point the driver is not under arrest- the driver is under investigation for potential DUI. 

The police officer then requests that the driver perform a battery of tests- things like the one leg stand, the nine-step walk-and-turn, etc.  The police officer may also ask the driver to blow into a portable breath device.   If after observing the driver perform these tests the police officer forms “probable cause” to believe the driver is intoxicated, the driver is arrested on suspicion of DUI.  The driver will be handcuffed, placed in the police cruiser, and typically transported immediately to the nearest facility for testing.  The driver’s vehicle may remain at the roadside or be towed depending on the location and circumstances of the stop.

At this point, the officer may or may not read the driver his or her “rights.”  The warnings we are all familiar with, “you have the right to remain silent…” referred to generally as one’s Miranda rights (referring to the U.S. Supreme Court case of Miranda v. Arizona, 384 U.S. 436 (1966)) are not mandatory.  It is a common misconception that all arrested persons are “entitled” to these warnings.  Miranda warnings are only required where police interrogate a suspect who is in police custody.  In a DUI case, the police may not interrogate the arrested driver at all.  They typically do not need to—they have already made observations that led to the initial arrest.  Now all they need is the driver’s blood-alcohol content to complete their investigation and charge the driver. 

The Tests

Here in State College, Pennsylvania, drivers arrested on suspicion of DUI are transported to the local hospital where they are asked to submit to a blood test.  The test is administered by a duly licensed nurse or phlebotomist who is trained to draw blood for use in criminal prosecutions.  In other counties, arrested drivers are transported to facilities equipped with an approved breathalyzer machine.

An arrested driver does not have to consent to a blood or breath test following his or her arrest for DUI.  However you do not have a right to refuse testing.  This means that your refusal to submit to post-arrest testing can and does have consequences.  In Pennsylvania, refusal to submit to post-arrest chemical testing will result in a driver’s license suspension of at least one year under Pennsylvania’s “implied consent” law.

What does “implied consent” mean?

Under Pennsylvania law, all motorists are deemed to have consented to a chemical test if a police officer has “reasonable grounds” to believe that a person is driving under the influence of alcohol and/or drugs.  See 75 Pa.C.S.A. §1547.  So, in other words, your consent to chemical testing is implied by the fact that you were driving.  Put another way, by driving here in Pennsylvania, you agree to submit to a chemical test if you are arrested for, among other things, DUI.  Refusing the test has consequences.

Under Pennsylvania law, the arresting officer(s) must advise you that, while you can refuse to submit to chemical testing, there are consequences to your refusal.  Specifically, law enforcement must advise you that if you refuse to take a chemical test, your refusal will result in a driver’s license suspension. 

If you refuse to submit to testing— either blood, breath or urine— after you have been arrested for DUI, then your license will be suspended.  This suspension stems directly from a violation of the implied consent law.  It is NOT the same as the suspension you receive if you are convicted of DUI.  If you are convicted, you will serve an additional driver’s license suspension for the DUI offense.  If you are not convicted, while there will be no additional suspension, you will still have a driver’s license suspension for your refusal to submit to chemical testing. 

For your first refusal, your driver’s license will be suspended for a period of 1 year.

For a second or subsequent refusal, your driver’s license will be suspended for 18 months.

If you have previously been convicted of a DUI and refuse testing at the time of a subsequent arrest, your driver’s license will be suspended for 18 months.

A refusal to submit to testing means that your DUI offense will be graded as a “highest tier” offense.  In the absence of evidence to prove your BAC, the law assumes that you have the highest possible BAC. 

What are “O’Connell Warnings”

In addition to warning you that there are driver’s license suspension consequences that will result from a refusal to submit to chemical testing, police officers are also required to provide you with additional information referred to generally as an “O’Connell” warning which stems from the case of Com., Dep't of Transp., Bureau of Traffic Safety v. O'Connell, 555 A.2d 873 (Pa. 1989). 

The thrust of the O’Connell warning is this:  You do not have a right to an attorney when law enforcement requests that you take a post-arrest chemical test in Pennsylvania.   Miranda warnings which require that the subject of a criminal investigation be advised of their right to an attorney prior to questioning are inapplicable to breathalyzer tests.  Under O’Connell, law enforcement must advise you that if you refuse to take a breathalyzer test your license will be suspended and you do not have the right to consult with an attorney or anyone else prior to deciding whether to take or refuse the test. 

What should I do?

If you have been arrested for DUI and police are requesting that you submit to a chemical test, you have some difficult choices.

First and foremost, you must understand that refusing to take the test will result in a license suspension.  While that suspension can be appealed and potentially overturned, don’t count on it.  The suspension would only be overturned if there were serious procedural errors committed by the police such as failing to provide the required warnings. 

You are on your own.  You do not have the right to an attorney.  You do not have the right to consult with anyone prior to deciding whether or not you will take the test.

The decision you must make is essentially this:  By refusing chemical testing, your license will be suspended for a period of one year or more.  However, by refusing you prevent the Commonwealth from obtaining very important evidence to be used against you in a DUI case.  Can you tolerate a one year license suspension in order to deal a strategic blow to the Commonwealth in their prosecution of your DUI case?  Only you can answer that question. 

If you are clear-headed enough to weigh your options at the time you are asked to submit to chemical testing, consider how you performed on the field sobriety tests (if you performed them) or the information you gave to the police in response to questioning (if you gave any at all).  If you made no admissions and provided no information to police, and you either did not perform field sobriety tests or you did perform them but you believe your performance on the tests was satisfactory, by refusing chemical testing you may be able to beat your DUI case outright (though you will still have a license suspension for the refusal).  On the other hand, if your performance on the field tests was poor or you were clearly intoxicated to the point that you could not operate a vehicle, you may gain little by refusing the test because other evidence would be sufficient to convict you. 

In short, choose wisely…

Remember that an experienced DUI lawyer will carefully review the facts and circumstances of your chemical test, including the warnings provided and the type of tests administered.  Even if you do submit to testing, there are many ways to challenge the test results.  If you or a loved one have been charged with DUI, please contact the State College DUI attorneys at Rehmeyer & Allatt for a free consultation. 

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1317 N. Atherton St.
State College, PA 16803

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