DUI and the Right to Refuse Blood Testing for BAC
You’ve been pulled over by the police, and you know that you were drinking earlier in the day. You waited several hours to drive, and you think you should be below the legal limit, but what if you are not? What are you rights if the police ask you to conduct a field sobriety test, or give blood to determine your blood alcohol content (BAC)?
In the Commonwealth of Pennsylvania, you have every right to refuse a field sobriety test and to refuse to submit to blood alcohol testing. However, the result of these refusals can have very serious consequences. Below is what you can expect, should you refuse to consent to one or both.
What is a Field Sobriety Test?
We have all seen videos, movies, and depictions of a roadside field sobriety test. You can expect to be asked to walk a straight line, to follow an officer’s pen as he moves it across your field of vision, and to stand on one leg. The official names are “horizontalgaze nystagmus test, the walk and turn test, and the one leg stand test.” These tests are done by police officers when it is suspected that you are under the influence of drugs and or alcohol and that you are incapable of driving safely on the roads of the Commonwealth of Pennsylvania.
Refusal of Sobriety Test
Refusal to undergo a field sobriety test is within your right. If you refuse a field sobriety test, your refusal cannot be used as probable cause to arrest you for Driving Under the Influence (DUI). The officer will have to rely on other factors, such as the smell of alcohol, your demeanor, or other characteristics indicative of a person under the influence. More often than not, if you have been drinking or using drugs in an illegal manner, the officer will be able to find something that gives him probable cause to make the arrest.
What is Chemical Testing?
If you are pulled over, and the officer suspects that you are under the influence of drug and or alcohol the officer may ask you to submit to chemical testing or a specialized breathalyzer at the police station. Chemical testing requires your blood to be taken and tested for the number of drugs or alcohol in your system. In the Commonwealth of Pennsylvania, any amount of alcohol over a .08% is automatically a DUI. Any detectable amount of illegal substances in your blood is also an automatic DUI. This includes marijuana, regardless of whether or not you have a medical right to consume marijuana.
It is also important to note that just because your blood alcohol is under .08% does not mean you will not be charged with a DUI. If the officer believes that you were incapable of driving safely on the roads of Commonwealth, and you have alcohol in your system, you could still be charged. These instances are rare but do happen.
Refusing Chemical Testing
The United States Supreme Court ruled in Missouri v. McNeely that blood draw without consent or a warrant is a violation of an individual’s fourth amendment right to be free from unreasonable search and seizures. Without a warrant or consent, and officer in Pennsylvania cannot take your blood and submit it for BAC testing. If the officer’s station is equipped with a specialized breathalyzer, he may choose to have you submit to breathalyzer rather than a blood test. You are not entitled to choose one test over the other, and you cannot legally refuse the breathalyzer.
If blood is requested and you refuse to give consent, the refusal can be considered as evidence of consciousness of guilt, and that can be used against you to prove a DUI in court. It is equally important know that Pennsylvania considers driving on it’s roads a privilege and not a right. Therefore, if a person refuses to submit to chemical testing, they will automatically lose their privilege to drive in Pennsylvania for one year, regardless of whether they are found not guilty of the DUI. The individual will be required to surrender their license to PennDOT.
If you or someone you know has been charged with Driving Under the Influence, it is important that you understand your rights. Please contact Musi, Merkins, Daubenberger & Clark, LLC for assistance, and we will ensure you get the best legal help available.