Refusing A BAC Test In West Chester

According to Pennsylvania law, those arrested in the state for DUI are required to take a blood, breath or urine test, once arrested. Under the implied consent law in Pennsylvania, if the arresting officer has probable cause to believe a lawfully arrested citizen was driving under the influence, that person must submit to a BAC test or accept the consequences. The officer must administer the test within two hours of driving and must observe the person under suspicion of DUI for twenty minutes prior to administering the test. If the person whose BAC was tested is later convicted of DUI, he or she will be responsible for the expense of the tests to determine impairment.

Once a suspect has submitted to the BAC test, they have the right to ask for additional BAC tests to be taken by their own physician. If the person arrested refuses the BAC test his or her driver’s license will be suspended for a period of one year. (18 months for a second or third DUI offense). The arresting officer is required to inform the suspect their license could be suspended if they refuse the BAC test. The officer should also tell the suspect that if they are later convicted of a DUI, they will be forced to accept the penalties for the refusal, as well as for the DUI. Regardless of whether the suspect submits to a BAC test, he or she is entitled to a hearing in order to challenge the driver’s license suspension.

Implied Consent Warning

Regardless of whether the suspect submits to a BAC test, he or she is entitled to a hearing in order to challenge the driver’s license suspension. Refusing a BAC test, and then later being acquitted of DUI criminal charges does not mean the license suspension for refusal will be lifted. The police officer is required to read the Implied Consent warning (DL-26 form) to the suspect, however, many believe there are serious issues associated with this waiver. Legally, proof must exist that the person refusing a chemical test made a knowing, intelligent, voluntary decision to refuse.

The Implied Consent warning, however, is only read in English and is full of complex language which could be difficult, even for a native English speaker, to understand. This begs the question as to whether a person could make a knowing, intelligent, voluntary decision to refuse a Breathalyzer test when they did not fully understand the warning read to them regarding consequences for a refusal. In the end, a person refusing a chemical test who is later found guilty of a Pennsylvania DUI could face an additional 12-18 months of license suspension plus criminal penalties.

Express Refusal vs. Implied Refusal

It is important to note there are two types of refusals—an expressed refusal and an implied refusal. An expressed refusal occurs when the police tell the suspect they are going to administer a chemical test and the suspect clearly says “no.” The other type of refusal occurs when the suspect didn’t actually say “no,” but the police recorded a refusal. This can occur when the suspect is not physically able to perform a breathalyzer test due to a specific health problem.

Times a Person Can Be Forced to Undergo a BAC Test

The only time a person stopped on suspicion of DUI can be forced to take a BAC test is if that person was driving on a suspended license due to an alcohol-related offense at the time, or if he or she was involved in an accident where someone was killed or seriously injured. Refusing a BAC test brings no guarantee there will be no DUI conviction, since the prosecution will likely use the suspect’s refusal against them, arguing the person refused because they were intoxicated. In reality, while a DUI conviction can bring serious consequences, the penalties for a first DUI conviction in Pennsylvania are six months probation and a minimum fine of $300—no license suspension.

Challenging a Forced DUI Chemical Test

A forced blood draw could potentially be challenged on the chain of custody; the more people who handle the sample the higher the likelihood it could be contaminated. Certain medical conditions may also skewer blood test results, or the forced blood draw may have been obtained outside the two-hour window in which it must be performed. These issues may present the opportunity for a challenge to the results.

Refusing a BAC Test is No Guarantee of Dropped Charges or DUI Acquittal

Refusing a BAC test brings no guarantee there will be no DUI conviction, since the prosecution will likely use the suspect’s refusal against them, arguing the person refused because they were intoxicated. While a DUI conviction can bring serious consequences, the penalties for a first DUI conviction in Pennsylvania are six months probation and a minimum fine of $300—no license suspension. Due to the harsh penalties associated with refusing chemical testing, it is generally advised to submit to chemical testing.

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Pennsylvania Implied Consent Warning / “O’Connell Warning”

Every driver signs forms agreeing to implied consent laws when they apply for or renew their driver’s licenses. Pennsylvania’s implied consent law requires police officers to advise suspects that they do not have the right to speak to a lawyer or remain silent when asked to submit to BAC testing, and refusing will result in an automatic suspension of driving privileges.

If you are stopped for suspected drunk driving, the police officer is required to read you the implied consent warning known as the DL-26 form. This is also referred to as the “O’Connell Warning,” in reference to the Pennsylvania Supreme Court decision in Commonwealth of Pennsylvania, Department Of Transportation, Bureau of Traffic Safety v. Patrick M. O’Connell. In that case, O’Connell successfully argued that he refused to submit to a breathalyzer test because he mistakenly believed he had the right to speak with an attorney before taking the test.

When a police officer in Pennsylvania now issues the O’Connell Warning, it reads as follows:

Please be advised that you are under arrest for driving under the influence of alcohol or controlled substance in violation of Section 3802 of the Vehicle Code.  I am requesting that you submit to a chemical test of blood, breath or urine.  It is my duty as a police officer to inform you that if you refuse to submit to the chemical test, your operating privilege will be suspended for at least 12 months, and up to 18 months, if you have prior refusals or have been previously sentenced for driving under the influence. In addition, if you refuse to submit to the chemical test, and you are convicted of or plead to violating Section 3802(a)(1) (relating to impaired driving) of the Vehicle Code, because of your refusal, you will be subject to more severe penalties set forth in Section 3804(c) (relating to penalties) of the Vehicle Code, the same as if you would be convicted of driving with the highest rate of alcohol, which include a minimum of 72 consecutive hours in jail and a minimum fine of $1,000.00, up to a maximum of five years in jail and a maximum fine of $10,000.  It is also my duty as a police officer to inform you that you have no right to speak with an attorney or anyone else before deciding whether to submit to testing and any request to speak with an attorney or anyone else after being provided these warnings or remaining silent when asked to submit to chemical testing will constitute a refusal, resulting in the suspension of your operating privilege and other enhanced criminal sanctions if you are convicted of violating Section 3802(a) of the Vehicle Code.

Penalties for Refusal to Submit to BAC Testing in Chester County

Pennsylvania uses a tier system for DUI offenses. The three levels of DUI are:

• General Impairment — .08 to .099 BAC
• High BAC — .10 to .159 BAC
• Highest BAC — .16 and above

The levels of punishments increase for DUI convictions with higher BAC levels, but it is important to understand that refusing to submit to chemical testing can make you subject to the highest BAC penalties. If you have no prior DUI offenses, penalties can include:

• License suspended for 12 months
• Prison sentence of 72 hours to six months
• Fines of $1,000 up to $5,000
• Alcohol Highway Safety School
• Possible court-ordered treatment

If you have one prior DUI offense, penalties may include:

• License suspended for 18 months
• Prison sentence of 90 days to five years
• Fines of $1,500 up to $10,000
• Alcohol Highway Safety School
• Possible court-ordered treatment
• Ignition interlock systems installed for one year on every motor vehicle you own, operate, or lease

If you have two or more prior DUI offenses, penalties can include:

• License suspended for 18 months
• Prison sentence of one year to five years
• Fines of $2,500 up to $10,000
• Possible court-ordered treatment
• Ignition interlock systems installed for one year on every motor vehicle you own, operate, or lease

Pennsylvania Refusal to Submit to BAC Testing Defenses

While charges for DUI and refusing to submit to chemical testing may feel daunting, several defenses can result in those charges being reduced or even dismissed. Such defenses may include, but are not limited to:

• Misunderstanding by a police officer or yourself led to incorrect recording as a refusal
• The police officer did not read you O’Connell Warning or notify you of the consequences
• The police officer had no probable cause to pull you over or suspect you of DUI
• You were not driving
• You were physically unable to provide a sample and the officer did not provide an alternative test

How a DUI Attorney in Pennsylvania Can Help You

When faced with a DUI, it can feel like an impossible situation. You may be able to minimize the consequences you face. To do so, work with an experienced Pennsylvania DUI attorney. Our legal team will provide a wide range of services for you to help you minimize the risk of facing a conviction. Those services include the following.

Advise You on How to Proceed

In situations where you are facing an arrest and being asked to take a breath or blood test, the most important first step you can take is to contact a DUI attorney. Our legal team will provide you with fast, immediate help to inform you of the best way forward. We encourage you to do this as soon as possible.

Protect Your Rights While Being Questioned

In situations where you are facing questions at the police station or are being questioned after arrest, our DUI attorney can provide you with the hands-on immediate support you need. This includes providing you with exceptional support to:

• Understand your rights
• Minimize the risk that you will say something that jeopardizes your case
• Provide you with insight into what is going to happen next
• Ensure your constitutional rights are protected throughout this process
• Inform you of the legal options you have based on what you are facing

We will be there for you. That includes providing you with transparency in what you are facing moving forward. When you hire Ciccarelli Law Offices as your Pennsylvania DUI attorney, you can count on us to remain by your side throughout this legal process.

First Time Offender Support

If this is the first time you have been arrested for DUI, you may have the opportunity to avoid the worst consequences of a DUI. That may include reducing the penalties you face, including losing your license. Additionally, our attorneys will help you negotiate plea agreements, if appropriate in your situation, and help you determine the best defense moving forward.

Many clients are able to see significant improvement in their outcomes as first-time offenders if they take steps immediately. You may be able to qualify for a division program or an Accelerated Rehabilitative Disposition. This is not a given decision. We need to appeal to the proper parties providing the best level of confidence possible.

Challenging Evidence

In situations where you believe the evidence against you is not accurate or you are confident you were not intoxicated, our attorneys will work to challenge the information presented. There are various ways to do this. We may be able to prove the breathalyzer device was not used properly or calibrated.

Represent You in a Court of Law

In situations where it is necessary to go to court, you can expect our legal team to be on your side. This includes developing a solid legal strategy moving forward, remaining by your side in court, and explaining all aspects of your case to you.

We are passionate professionals. Our experience and dedication allow us to consistently work to meet our clients’ needs. Even in challenging legal matters, we can help you.

Complex DUI Cases

Some clients face complicated DUI cases. This may include facing a second offense within 10 years. You may also be facing more stringent consequences because someone was hurt as a result of the accident. These cases typically create a higher level of legal scrutiny. In every situation like this, it is critical to have an attorney you selected by your side. You need an experienced attorney who knows how to handle legal cases like yours. Not every DUI attorney has that experience.

Consider the Importance of Aggressive Legal Representation

Every DUI case is a serious charge that carries significant potential consequences. Our goal is to get the charges dropped or reduced or to negotiate the best possible outcome for you. This is critical for several reasons.

DUI Conviction is a Criminal Charge

Because a DUI is a criminal act, this remains on your record. It is quite difficult to have it removed at any point in the future, either. That means any time a background report is pulled for you, this criminal record is present.

Our goal is to eliminate that risk by mitigating the risk of a conviction. Avoiding these risks may be possible, especially if this is a first-time offense for you.

You May Lose Your Professional License

A secondary factor to consider is any professional license you hold. There are a few key factors here:

• If you drive for a living and have a CDL, you may lose that driving privilege. That eliminates your ability to work your job. We want to try to avoid that consequence.
• If you have a professional license that could be jeopardized with a criminal record, such as a medical or dental license, it is just as important to work to minimize these risks.

Because of the risks involved, it is critical for you to have an attorney available to help you minimize these risks.

Jail Time and Fines Are a High Risk

Another factor to remember is that a driver’s license suspension is not the only consequence of a DUI. For many, it may include significant fines as well as jail time. It may be possible to mitigate these risks as well.

As a local legal team, we work closely with our clients to fully understand what they are facing and then create a legal strategy that specifically meets their needs. This includes examining all potential legal strategies that could minimize the risk of conviction.

Our legal team has the experience you need to help you work towards an acquittal. That experience, along with our passion for providing exceptional service to our clients, can make a big difference in your outcome. We encourage you to contact us immediately if you are facing DUI charges or have already been convicted.

Our Chester County drunk driving attorney understands the risks. Even if you refused a DUI test, we can help you navigate the legal options.

Find the Best Refusal to Submit to BAC Testing Lawyer in West Chester

If you were arrested for DUI and refused to submit to chemical testing, you should contact a criminal defense attorney as soon as possible. Ciccarelli Law Offices defends clients against drunk driving charges in such Chester County communities as West Chester, West Goshen, Phoenixville, Coatesville, Easttown, and West Caln.

We also help people in surrounding areas like Lancaster County, Montgomery County, and Delaware County as well as the greater Philadelphia area. You can call or contact our firm today at (610) 692-8700 to receive a free consultation.