First, it should be noted that this post relates only to Pennsylvania DUI Law as DUI laws differ from state to state. In the Pittsburgh area if you are stopped for a suspected DUI you will be asked to submit to either a blood or a breath test. Not all Police Departments can afford the costs associated with operating a certified breath testing machine. Thus, some departments will take you to a local hospital for a blood draw. Whether you refuse a blood test or a breath test request can have very different consequences for your Pittsburgh DUI charges. This will be discussed later in this post.
Pittsburgh Pennsylvania is an “implied consent” jurisdiction. This means that when you drive here you are implicitly agreeing to submit to chemical testing if it is requested by the police. Consequently, under Pennsylvania Law one does not have a right to refuse a blood or breath test request. Further, PA Law imposes a civil penalty of a 12 month driver’s license suspension for test refusal. As this is a civil penalty it is completely separate from any license suspension imposed for conviction of the Pittsburgh DUI charge. The refusal suspension will be imposed even if DUI charges are not filed or you are found Not Guilty of the DUI. Finally, any suspension imposed as a result of the DUI will be stacked on top of the refusal suspension.
FIRST TIME DUI OFFENDERS
For a first time Pittsburgh DUI offender with no prior criminal convictions it is almost never in your best interest to refuse a blood or breath test request by the police. You can still be prosecuted for DUI under PA Law without a test result so the charge will proceed regardless. Further, for first time offenders, there are pre-trial diversionary programs which may allow you to avoid jail time, a criminal record and have lower, or no, license suspension. Thus, if you refuse the test the only likely result will be that you serve 12 months of additional license suspension unnecessarily.
THOSE WITH ONE OR TWO PRIOR DUI CONVICTIONS
For those who have one to two prior DUI convictions the decision is not as simple. As Pittsburgh, Pennsylvania uses a multi-tier BAC system to calculate mandatory minimum DUI sentences, there can be a major difference depending on whether you refuse a blood or breath test request. If you refuse a breath test it will not lower the mandatory sentence that you face. In fact, if you are actually below a .16% BAC (the highest tier for BAC in PA) it will result in a higher mandatory sentence as refusals are considered to be in the highest sentencing tier. Further, you will face the additional 12 months of suspension on top of the suspension you receive for the DUI.
However, blood test requests are treated differently because of the United States Supreme Court ruling in Birchfield v. North Dakota (2016). In that case, the Supreme Court held that refusing a blood test request cannot be used to impose enhanced criminal penalties in DUI cases. Thus, HAD the mandatory minimum sentence for a blood test refusal cannot be calculated using the highest tier. If fact, pursuant to Birchfield the prosecution must use the lowest tier to calculate the mandatory sentence. Consequently, you will likely face a lower mandatory sentence than if your actual BAC had been used.
The difference in mandatory minimum sentences can be striking. I have had clients that were facing a mandatory minimum 1 year prison sentence on their Pittsburgh DUI where I was able to use Birchfield to lower that to a 10 day mandatory jail sentence (where house arrest is usually available).
THOSE WITH THREE OR MORE PRIOR DUI CONVICTIONS
Finally, if you have 3 or more prior DUI convictions you will be facing a 1 year mandatory minimum prison sentence regardless of your BAC. At that point, 12 months of license suspension for refusal is the least of your worries. In that case, you are much better off refusing the test to deprive the prosecution of as much evidence as possible.