What Happens When You Refuse A Chemical Test
If you are being charged with refusing to submit to a breath or blood test, it is important to understand the laws and penalties. Refusal cases come with additional penalties both criminal and civil. That means you can be facing more jail time and additional license suspensions.
What the Law Says
The concerning statute is Section 1547 of the Pennsylvania Motor Vehicle Code (75 Pa.C.S.A. § 1547) which states:
Any person who drives, operates or is in actual physical control of the movement of a vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath or blood for the purpose of determining the alcoholic content of blood or the presence of a controlled substance…
What does it mean?
Section 1547 of the Motor Vehicle Code is called the “implied consent” law. If you have a driver's license, the law says you have given your consent to submit to breath or blood testing for DUI if ordered to do so by a police officer. By accepting a driver's license from the state, you agree to take a chemical test if a police officer has “reasonable grounds” to believe that you are driving under the influence. Refusing to do so violates Section 1547.
How does refusing a chemical test affect my DUI case?
At Mike Sherman Law, we believe that the police must get a search warrant to take your blood. If the police do not get a search warrant, we try to throw out the blood test as evidence. That can dramatically change the dynamics of your case. At a minimum, getting the blood test result thrown out will lower the penalty. For example, if this is your third offense and a blood test shows you are in the highest tier, you are facing one year in jail. If the blood test is thrown out, you will be facing 10 days in jail! It will also take the offense from a Felony to a misdemeanor.
Throwing out the blood test will also weaken the prosecution's case against you. Sometimes, when the blood gets thrown out, we can get the DUI case dismissed.
Refusing a breath test results in higher penalties in DUI cases. While a search warrant is not required for breath tests, there are defenses to a breath test refusal. The officer never gave you a fair opportunity to take the test or the machine malfunctioned are just two of the many defenses to breath test refusals.
What are the penalties?
You can see the DUI sentencing penalties in the attached chart.
Refusing the chemical test will increase your criminal penalties. But, not only will your criminal penalties be increased (more jail time, larger fine), violating Section 1547 carries an additional penalty: you will get an additional license suspension of at least 1 year just for refusing the chemical test.
If you have a prior conviction for DUI or a prior chemical test refusal, your suspension will increase to 18 months and you have to pay a $500 restoration fee to get your license back. If you had two refusals in the past, the restoration fee is $2,000!!! These penalties are in addition to whatever penalties you may face on the DUI charge. So if you refuse and are convicted of DUI, you may end up with a 24 month license suspension.
Also remember that if you have two previous DUI convictions, a refusal will turn your DUI into a felony offense.
If that doesn't sound bad enough, there's more: if you are caught driving on a DUI suspended license, you are looking at additional jail time. For a first violation, the mandatory minimum penalty just on the driving under suspension, DUI related charge is a 60 to 90 jail sentence and a $500 fine. For a second violation, the mandatory minimum jail sentence is 90 days and the fine jumps to $1,000. If it is your third conviction, the offense turns into a misdemeanor and carries a mandatory minimum jail sentence of 6 months and a $2,500 minimum fine.
If you are caught driving on a DUI suspended license with a blood alcohol content of .02% or greater, the penalties are increased. There is a mandatory minimum sentencing starting at 90 days for the first offense and 2 years for the third offense.
There is hope
We are challenging the constitutionality of Pennsylvania's Implied Consent law. We have yet to receive a decision on our challenges, but you can challenge the law in your case. What have you got to lose! Many lawyers don't take the time and effort to make these challenges. We do.
Don't leave any stone unturned. An experienced and knowledgeable Pennsylvania DUI defense lawyer who tackles tough DUI cases can identify issues in your case that can be challenged. For years, citizens have trusted former Pennsylvania State Police attorney Mike Sherman. He is a life-saver for many. He is a different type of attorney. He's the kind who is willing to fight for you. Don't delay. Call now for a free consultation. Call now to set up your free consultation at (412) 471-5000.