Refusal of Chemical Testing

I have seen clients refuse testing for a variety of reasons: not wanting to incriminate themselves further, fear of needles, to "spite" the officer or, usually, because they simply did not understand what their rights were. No matter what the reason for the refusal, the consequences are severe.

In Pennsylvania, when a motorist initially receives his driver's license, he automatically agrees to a chemical test of his blood, breath or urine if a police officer reasonably suspects that the motorist is under the influence of alcohol or a controlled substance. This is called "Implied Consent." If the motorist refuses chemical testing, he will be considered to be in the highest tier of intoxication and will lose his license for an additional one year for a first offense, and an additional 18 months for a second offense. This suspension is in addition to any loss of license for the DUI itself.

When requesting the test, the officer is required to read the motorist certain rights, called Implied Consent or "O'Connell Warnings". These rights inform the motorist that he is required to take the test, and if he refuses, there will be increased penalties, including increased jail time and license suspension. If the motorist refuses, Penndot sends a letter to the motorist suspending the license. There is an appeal process whereby the motorist can appeal the suspension to the County Court of Common Pleas, which puts the suspension on hold until the court makes a decision. At the appeal hearing, the police officer must prove to the judge that he went through the proper procedures in requesting the motorist to take the test. If proper procedure was not followed, they then the suspension will be nullified. Generally speaking, license suspension appeals for refusals are difficult for the defense to win because police usually read to the motorist the Implied Consent form supplied to them by Penndot. Additionally, courts have held there is no right to have an attorney present when taking the blood or breath test.

If your case involved a refusal of testing, it is best to immediately contact an attorney. I have had cases where I was able to contact the arresting officer immediately and convinced him not to notify Penndot about the refusal. If the officer does not send in the refusal notification to Penndot, then there is no additional suspension for refusing.