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Next on DUI Talk, we will take on the breathalyzer. There are two kinds of breath tests: the pre-arrest portable breath test and the post-arrest chemical breath test. The two tests are extremely distinct, and carry different consequences for refusal to comply.

The Portable Breath Test (PBT)

The PBT is exactly what it sounds like-portable breathalyzer units carried by officers that are used to obtain a roughestimate of the driver’s blood alcohol in the field. We say rough estimate because these PBT devices are not subject to the same exacting calibration requirements as the actual breathalyzer machines utilized by some counties to conduct formal post-arrest testing. Unlike the PBT’s, the Chemical Breath Test devices used for official testing purposes are performed on calibrated devices which are tested for accuracy and which are approved by the Department of Health using approved procedures.

Because of the faultiness of the PBT, its results are not admissible in court. You may and you should refuse to consent to a portable breath test. The PBT is administered in hopes that the police can find probable cause to arrest you for a DUI. Even if you have not been drinking, a false positive read by the portable breathalyzer can lead to your arrest.

The Post-Arrest Chemical Breath Test

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 You 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.

So Remember…

You have very little reason to consent to a PBT. Even if you are certain that your blood alcohol content is non-existent, or well below the legal limit, the device may register your BAC as much higher. Police administer PBTs and field sobriety tests in attempt to find probable cause to arrest you. If you consent to tests that you do not necessarily need to consent to, you are giving the police more cause to arrest you.

After you have been arrested, it is completely up to you as the individual to decide if you would like to consent to the chemical breath test. Although it is your right, we have discussed the consequences of refusal.

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.