Refusing DUI Test

Implied Consent in PA

Under Pennsylvania’s implied consent law, any person who drives or is in physical control of a motor vehicle is required to submit to a chemical test of his breath, blood or urine if a law enforcement officer suspects the person of DUI.

If a driver refuses to submit to a chemical test, he or she can face additional severe license penalties.

Penalties For A DUI Refusal

An individual who refuses to submit to chemical testing to determine blood alcohol concentration (BAC) or controlled substance impairment faces the most severe penalties for DUI offenses. Even if an individual is accepted into the ARD program, he or she still faces a one-year suspension based upon the refusal.

A first offense DUI conviction involving a refusal to submit to chemical testing is a misdemeanor and, if convicted, an individual faces the following mandatory sentence:

• 72 hours to 6 months incarceration;
• Fines ranging from $1,000 and $5,000;
• 12 months driver’s license suspension;
• Successful completion of an approved alcohol highway safety course; and
• Successful completion of alcohol or drug treatment.

A second or subsequent DUI involving a refusal of chemical testing is a misdemeanor of the first degree and, if convicted, an individual faces the following mandatory sentence:

• 90 days to 5 years incarceration;
• Fines ranging from $1,500 and $10,000;
• 18 months driver’s license suspension;
• Ignition interlock device installation for one year;
• Successful completion of an approved alcohol highway safety course; and
• Successful completion of alcohol or drug treatment.

An individual who refuses to submit to chemical testing also faces an additional one year (possibly 18 months) driver’s license suspension.

Notice Of Refusal & PA License Suspension

After a driver refuses to submit to a lawfully requested chemical testing, the officer will forward a DL-26 Form, also known as the Notice of Refusal to the Pennsylvania Department of Transportation (PennDOT).

Once the Notice of Refusal is received by PennDOT, it will send a letter to the driver notifying him or her of a mandatory one year (possibly 18 months) license suspension. The license suspension usually takes effect 30 days from the date of the letter.

A driver has the right to appeal this mandatory license suspension. A drive must file an appeal by the deadline indicated in the PennDOT letter, usually not less than 30 days from the date of the letter. Otherwise, the license suspension will go into effect and there will be no further remedy.

Civil Proceeding After A DUI Arrest Involving A Refusal To Submit

After an individual refuses to submit to chemical testing and is arrested for DUI, two cases remain pending. One is the criminal case for the DUI charge and the other one is an administrative case. The administrative case involves the Pennsylvania Department of Transportation’s administrative action to suspend an individual’s driver’s license for a one-year period based on the allegation that the refusal to take a chemical test occurred.

When an appeal of taken, the case proceeds to a license suspension appeal hearing in the Court of Common Pleas.

A driver has the right to appeal any license suspension based upon a refusal. In order to uphold the suspension, the Department of Transportation must establish the following facts by a preponderance of the evidence, which means the evidence that the following occurred only has to outweigh the evidence that it did not occur:

• The arresting officer had reasonable suspicion to believe that the driver was operating a vehicle while under the influence of alcohol or impaired by a controlled substance;
• The driver was asked to submit to a chemical test of his breath, blood or urine;
• The driver refused to submit to the requested chemical test; and
• The driver was warned that the refusal would result in a suspension of his driver’s license.

If the arresting law enforcement officer did not read or allow a driver to review the implied consent warnings and possible punishments for refusing to submit before the refusal allegedly occurred, then the suspension may be invalidated or set aside.

Standard Jury Instructions In DUI Refusal Cases In Pennsylvania

The Pennsylvania Suggested Standard Criminal Jury Instructions provide that the court can advise the jury, when appropriate, of the following:

1. The Commonwealth contends that the defendant refused to give a sample of (his / her) (blood/urine) for testing. A person can express “refusal” in words, or he or she can demonstrate “refusal” by uncooperative conduct. You should consider everything said and done by the (police official) and the defendant, and all the surrounding circumstances, at the time of the alleged refusal when determining whether the defendant did, in fact, refuse to give the sample. (If a person refuses, that initial refusal can still be regarded as a refusal even if he or she later offers a sample for testing.
2. The Commonwealth argues that the testimony tending to show that the defendant refused to give a sample of (his / her) (blood/urine) indicates that (he/she) was conscious that (he /she) was guilty of (specify action). The defense counsel argues that [(he/she) did not refuse to give the sample] or [this evidence means no such thing.] [The defense maintains that (explanation).]
3. If you believe that the defendant was asked for, and refused to give a sample of (his / her) (blood/urine) for testing, you may consider that fact, along with all other relevant evidence, when you are deciding whether the defendant was under the influence of alcohol. Give the defendant’s refusal whatever weight and meaning you think it deserves. (The other relevant evidence includes the circumstances surrounding the request for the sample and the defendant’s refusal, and any reasons the defendant gave for refusing.)

DUI Refusal In Chester & Delaware County

In a DUI refusal case in Chester, Delaware or any other county Pennsylvania, there are two different ways the law enforcement officer might allege you refused chemical testing of your breath, blood or urine. The most common type of refusal involves an express refusal. The express refusal means a driver verbally refuses to submit to testing, such as saying “I will not submit to the chemical test.”

The other type of chemical test refusal, implied refusal, is not quite obvious. An implied refusal may include verbal or nonverbal conduct that leads an officer to believe the driver is refusing. Some examples of implied refusal are:

• The driver willfully remains silent, despite requests for testing;
• The drive became argumentative;
• The driver refused to say out loud whether he would take the chemical test or not;
• The driver became disruptive or abusive, which made chemical testing impossible; or
• The driver failed to give the effort to provide a sufficient sample for breath testing

What If You Refuse A DUI Test

Contact Skinner Law Firm today for a consultation about your DUI offense and chemical test refusal in Chester County, Delaware County, or any surrounding Pennsylvania Counties.

Michael J. Skinner will listen to the facts of your particular situation and help you identify any defenses or mitigating circumstances in order to find the best possible outcome of your situation.

Call today at (610) 436-1410 for a consultation about your charge for driving under the influence and refusal to submit to chemical testing in Pennsylvania.