DiCindio Law LLC | April 13, 2020 | DUI
When you drive or otherwise operate a motor vehicle in Pennsylvania, the state considers you to have given implied consent to have your blood or breath tested for the presence of alcohol or other drugs.
People who refuse to submit to blood or breath tests will face civil penalties. Even if their BACs were lower when they drove, they will receive the same penalties that people who drive with the highest BAC levels under the state’s laws.
The legal team at DiCindio Law believes it is important for everyone in Pennsylvania to understand implied consent and what it means in Pennsylvania.
What Is Implied Consent In Pennsylvania?
Under 75 Pa.C.S. § 1547(a), all people who drive, operate, or are in actual physical control of motor vehicles in Pennsylvania are considered to have given their implicit consent to have their blood or breath tested for the presence of alcohol or drugs. However, implied consent does not arise unless an officer has a reasonable basis to believe that the person has driven a vehicle while under the influence of drugs or alcohol, has driven a vehicle while his or her license was revoked or suspended, or has driven a vehicle without an ignition interlock device when one was required by the court.
The Warrant Requirement Under The Fourth Amendment
Under the Fourth Amendment to the U.S. Constitution, people have the right to be free from unreasonable, warrantless searches and seizures of their homes, properties, and persons.
Generally, this is understood to mean that the police must obtain search and seizure warrants before they can search your property or person or seize something from you. However, there are several exceptions to the warrant requirement.
In the context of DUI arrests, one of the most commonly used exceptions is actual consent when blood is taken. In this type of case, an officer might ask you to voluntarily consent to have your blood drawn to determine your BAC or the concentration of drugs in your system. If you agree, the officer will not need to get a warrant before having your blood drawn.
Pennsylvania’s implied consent statute is 75 Pa.C.S. § 1547, which deems you to have given your implied consent to have your breath or blood tested simply by operating or driving a motor vehicle on the state’s roads.
A second statute, 75 Pa.C.S. § 3755, gives the police the ability to ask for blood to be drawn by hospital staff of people who have been injured in motor vehicle accidents without a warrant if they have probable cause to believe that alcohol might have been involved.
Because of the warrant requirement of the Fourth Amendment, there is a question about whether Pennsylvania’s implied consent statute and the involuntary blood draw statute are unconstitutional.
Taking a look at some of the cases that have been decided by the courts can help to understand whether implied consent amounts to a second exception to the warrant requirement.
Are Pennsylvania’s Implied Consent Statutes Exceptions To The Warrant Requirement?
In Schmerber v. California, 384 U.S. 757 (1966), the U.S. Supreme Court held that a blood draw following an accident might meet the exigency exception to the warrant requirement of the Fourth Amendment.
In that case, a man who had a suspected DUI accident was arrested at the hospital where he was being treated for his injuries. The officer asked a doctor to draw blood for alcohol testing, and the results showed that his BAC was at a level of intoxication.
The man sought to have his test results suppressed based on the warrant requirement, but he was denied. The Supreme Court found that under the circumstances, the police officer may have reasonably believed that the emergency presented by the man’s blood alcohol concentration lessening as time passed might prevent the officer from obtaining results if he had to wait for a warrant.
The Supreme Court took a new look at the exigency exception of the warrant requirement for blood draws in Missouri v. McNeely, 133 S.Ct. 1552 (2013).
In that case, a Missouri man was pulled over at 2:05 a.m. by a law enforcement officer who saw him speeding and weaving. He refused a preliminary breath test and was placed under arrest.
He told the officer that he would refuse a breath test, so the officer took him to a hospital and had his blood drawn by medical personnel without a warrant. The man was later convicted of a DUI after objecting to the admission of his blood test results.
The Supreme Court held that his stop and arrest had been a routine DUI case. It also ruled that Schmerber required a look at the totality of the circumstances when determining whether the exigency exception’s requirements had been met.
It ruled that the dissipation of alcohol from the blood by itself was not enough. Instead, the court distinguished the case from McNeely because the officer in McNeely had to take time to investigate an accident and transport injured people to the hospital before blood could be taken.
The court found that the exigency exception had not been met and that the blood in Schmerber should have been suppressed.
The issue of whether Pennsylvania’s implied consent scheme has been rendered unconstitutional by McNeely has not been addressed. However, in Birchfield v. North Dakota, 136 S.Ct. 136 (2016), the U.S. Supreme Court provided further clarification about whether a warrant is needed to draw blood.
In that case, a person in North Dakota and a person in Minnesota sued after they were charged with crimes for refusing to submit to blood tests. The Supreme Court held that states cannot make refusing a blood test a criminal offense.
It also held that a warrant is required for blood draws in nearly every circumstance. In a later case, the court held that blood draws without a warrant from an unconscious person will generally be admissible, however.
This means that an officer will normally need to get a warrant to draw blood unless exigent circumstances exist. However, a warrant is not required to obtain a breath sample after your arrest.
Civil Penalties For Refusing A Breath Or Blood Test
While states cannot make the refusal of a blood test a crime, the Supreme Court has said that refusing a breath test can be criminalized by the states. In Pennsylvania, however, chemical test refusals, including those involving breath or blood tests, are not criminal. Instead, the state has enacted civil penalties for people who refuse to submit to post-arrest chemical testing, including the following:
- 12-month driver’s license suspension for a first refusal
- 18-month driver’s license suspension if you have a previous DUI, refusal, or a related prior offense
- Restoration fee of $500 for a first refusal, $1,000 for a second, and $1,500 for a third
- Mandatory installation of an ignition interlock device
Under 75 Pa.C.S. 3802, the penalties for a DUI conviction in which testing was refused are enhanced. For a first offense DUI under § 3802(a)(1) with a refusal, the person will face the penalties that are normally given to people convicted of the highest BAC offense, including the following:
- Imprisonment of at least 72 hours up to six months
- Fine of $1,000 to $5,000
- Mandatory alcohol highway safety school
- Alcohol or drug treatment if ordered
For a second DUI offense involving a refusal, the person will face the following penalties:
- First-degree misdemeanor
- Minimum jail of 90 days
- Minimum fine of at least $1,500
- Alcohol highway safety school
- May be ordered to complete alcohol or drug treatment
For a third DUI offense involving a refusal, a conviction might result in the following penalties:
- Third-degree felony
- Minimum prison of one year
- Minimum fine of $2,500
- Alcohol or drug treatment may be ordered
The court can also impose up to 150 hours of community service and attendance at a victim impact panel.
Implied Consent And Preliminary Breath Tests
When you are stopped by an officer who suspects that you might be under the influence of alcohol, the officer might ask you to perform standardized field sobriety tests and to take a preliminary breath test.
The standardized field sobriety tests or SFSTs consist of three tests that have been standardized through testing by the National Highway Traffic Safety Administration. These include the horizontal gaze nystagmus, the one-legged stand, and the walk and turn.
The officer might also ask you to perform a couple of other tests that have not been standardized and to submit to a preliminary breath test.
Unlike the post-arrest breath or blood testing, the SFSTs and the preliminary breath test do not fall under Pennsylvania’s implied consent law. This means that you have the right to refuse SFSTs and the preliminary breath test.
The preliminary breath test is a roadside test of your breath that is performed at the roadside by the officer. While you can refuse SFSTs and the PBT, the officer will likely place you under arrest for a DUI based on his or her other observations of your driving, your speech, and your appearance.
Once you are under arrest, you cannot refuse a post-arrest breath test at the police station or another chemical test without facing the civil penalties and the potential higher consequences of the DUI if convicted.
Pennsylvania’s implied consent laws mean that you will face additional consequences if you refuse to submit to a post-arrest breath or blood test to determine your BAC.
If you were stopped for a DUI and refused to submit to a breath or blood test, an attorney might review what happened to determine whether the officer had probable cause to place you under arrest.
If the officer lacked probable cause, your lawyer might file an evidentiary motion to seek the suppression of all evidence, including your refusal, that was gathered after your arrest.
Your lawyer might also represent you at an administrative hearing on the suspension of your driving privileges to try to protect your rights.
Contact Our DUI Law Firm in West Chester, PA
If you are facing criminal charges and need legal help, contact the West Chester, PA DUI lawyers at DiCindioLaw, LLC to schedule a free initial consultation.
DiCindio Law, LLC
29 S Walnut St
West Chester, PA 19382
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