Implied Consent Law
If you are operating a motor vehicle in the State of Pennsylvania, the Implied Consent Law (75 Pa. C.S.A. § 1547(b)(2)) states you have automatically consented to participate in a breath, blood or urine test to determine the blood alcohol content or presence of controlled substance if law enforcement has reason to believe you have been driving under the influence.
If you are arrested for a DUI, you must also be informed that there are penalties if you refuse to provide a sample for one of the tests. It is also important that the police officer read the complete implied consent warnings, or else a legal challenge can be raised to the BAC or the refusal.
A variety of different devices are in Pennsylvania to conduct breath tests.
In order for a breath test sample to be valid against a DUI offense, the following requirements must be met:
- The test administrator must have proper training and certification
- The testing device must be frequently inspected and it must be documented on a regular basis that the device is working properly.
- The breath test operator observe the person giving the sample for 20 minutes in order to ensure that the sample is not tainted.
- The sample must be taken within two hours of the DUI stop.
As of January 2013, thousands of DUI convictions have been called into question across the State of Pennsylvania after a judge ruled that the Intoxilyzer 500 EN breath testing machines are ineffective in accurately measuring samples outside the range of .05% to .15% blood alcohol concentration.
A blood sample can be requested for the following reasons:
- You refuse to take a breath or urine test;
- You’ve been involved in a car accident;
- The police officer does not think you’re capable of driving safely, even though your breath test results are under .08% BAC;
- The officer is suspicious that you’re unable to drive safely, even though there is no smell of alcohol on you or your car.
Blood tests are admissible evidence in criminal proceedings for DUI offenses. The fact that you may have refused to take a blood test may be permissible evidence as well.
Blood tests are typically considered more accurate than breath or urine tests. However, they are often easier to challenge at trial.
Urine tests are a very unreliable chemical test for alcohol or drugs. Urine tests are not utilized in Lancaster County, Pennsylvania.
If police suspect that you may have been under the influence of drugs instead of or in addition to alcohol, you will also be subjected to participate in a blood or urine test. Urine tests are often considered unreliable, however, since they detect metabolites and not the drug itself. Additionally, due to the fact that certain drugs may stay in your system longer than others, you could be charged with driving under the influence of drugs long after its effect has worn off.
Refusing a Test
If you refuse a blood, urine or breath test, the officer will first send a notice of refusal to the Pennsylvania Department of Transportation and you will face automatic suspension of your driver’s license for one year. You will also face the maximum penalties as if you were charged with a BAC of .16% or higher – a first degree misdemeanor – at least 3 days in jail, a fine of at least $1,000 and potentially 150 hours of community service.
When you get the suspension from PennDOT, you may challenge it in County Court if you feel that you were not advised of your rights correctly. If you appeal this refusal letter, your license will not be suspended until after your hearing.
If you refuse a blood, urine or breath test upon your second DUI offense, this is also treated as a first degree misdemeanor, and may include these additional penalties:
- Ignition interlock device for one year;
- Driver’s license suspended for 18 months;
- Fines from $1,500 to $10,000;
- Participation in an approved alcohol highway safety course;
- Completion of an alcohol or drug assessment.
Standardized Field Sobriety Tests
Standardized Field Sobriety tests were developed by the National Highway Traffic Safety Administration as a way of evaluating whether someone is intoxicated to the point that they were unable to safely operate a vehicle. The Standardized Field Sobriety tests are comprised of three tests – the Horizontal Gaze Nystagmus Test, the Walk-and-Turn Test, and the One-Leg Stand Test. You are not obligated to take these tests. If you do not take them, the officer will have to determine whether to arrest you without testing you.
- Horizontal Gaze Nystagmus Test
The horizontal gaze nystagmus test is conducted by measuring whether someone’s eyes are able to steadily follow a moving object. If someone’s eyes jerk, then this usually indicates being under the influence. This test is very unreliable and not admissible at trial in Pennsylvania.
- Walk-and-Turn Test
This test tests for balance and how well someone is able to follow directions as they are instructed to walk in a straight line and then turn on one foot and repeat.
- One-Leg Stand Test
In this test, the driver is told to stand with one foot approximately six inches off the ground and count for 30 seconds. This test is also unreliable, as with the other two tests.
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