Refusal of Chemical Testing

When someone is reasonably suspected to be Driving Under the Influence of Alcohol or a Controlled Substance, the police officer has the right to request chemical testing of the motorist's blood, breath or urine. 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 of refusing chemical testing are severe and potentially life-changing.

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 still be charged with Driving Under the Influence and will lose his license for an additional one year for a first offense, or 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 tell 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 additional license suspension. If the motorist refuses, Penndot sends a letter to the motorist suspending the license, typically within 15-60 days after the case occurred.

Once the suspension letter is received by the motorist, the motorist has approximately 30 days to either send the license to Penndot to begin the suspension or to appeal the case. The motorist can file a written appeal motion in 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, i.e, that the appropriates rights were read to the motorist. If proper procedures were not followed, then the suspension will be nullified. Generally speaking, license suspension appeals for refusals are extremely difficult for the defense to win because police usually read to the motorist the Implied Consent form supplied to them by Penndot. If an officer read the motorist his rights by memory, there is a better chance of success on appeal. There is no right to have an attorney present when taking the blood or breath test and courts have also held that fear of needles is not a defense to refusing chemical testing.

If your case involved a refusal of testing, it is best to immediately contact an attorney. On occasion 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.

The experienced attorneys at Ellis B. Klein & Associates have handled over 10,000 DUI cases, many of which involving refusal of testing. We promise to provide you with the dedicated, comprehensive and caring legal representation that you deserve. We understand how upsetting and confusing a criminal charge can be, and you have our promise that we will fight zealously to ensure that you are given the best defense. To schedule your free consultation, call us now at (800) 536-0501 or contact us online.