Do I Have to Submit to a Chemical Test for DUI?

You are driving down the road when an officer stops you and believes you are intoxicated.  Typically, the officer will perform field sobriety tests, such as the walk-and-turn, the one-leg-stand, and the horizontal gaze nystagmus (HGN) test.  The officer may request that you submit to a blood, breath, or urine test (each is a “chemical test”) to determine your blood-alcohol level.  One question that drivers often have is: Do I have to submit to the test?

The short answer to this question is no; however, there are serious consequences for refusing to submit to the test.  Pennsylvania law, like the law in most states, contains an “implied consent” provision.  By driving a vehicle in Pennsylvania, you have consented to submit to a chemical test if suspected of driving under the influence of alcohol or drugs.  If you refuse to take the test, the Pennsylvania Department of Transportation is required to suspend your driving privilege (“suspend your license”) for a period of one year.  This suspension for refusing the test applies even if you are found not guilty of driving under the influence.

Furthermore, refusal to submit to the chemical test can be used as evidence that you were driving under the influence of alcohol or drugs.  A prosecutor will likely argue that an innocent person would submit to the test to prove their innocence.

Refusal to submit to the chemical test may also increase the severity of the offense.  Pennsylvania law creates three “tiers” of DUI offenses, with a tier one offense being the least serious and a tier three being the most serious.  These tiers come with corresponding changes in the mandatory minimum sentences for those convicted of DUI.

For example, on a tier one offense, a person convicted of a first time DUI with a blood alcohol content of 0.08% has a mandatory minimum sentence of 6 months’ probation, $300 fine, alcohol highway safety school, and possible drug and alcohol treatment.  (Remember, this is a mandatory minimum.  A judge can sentence higher, but not lower.)  PennDOT does not suspend a driver’s license for a first time, tier one DUI.

Let’s look at the same facts, except the driver refused to submit to chemical testing making this a tier three offense.  A person convicted of a first time DUI with a refusal has a mandatory minimum sentence of 72 hours to 6 months in prison, $1,000 fine, alcohol highway safety school, and possible drug and alcohol treatment.  PennDOT will suspend this driver’s license for two years; one year for the tier three DUI and an additional year for the refusal.

Some drivers want to know if they can consult with their attorney before submitting to the test.  Again, the answer is no.  The law does not allow a driver to speak to an attorney before deciding whether to submit to the chemical test.  Insisting to speak to an attorney before the test is considered as a refusal to submit to the test and the enhanced penalties apply.  You do, however, have the right to remain silent.  You may say nothing to the officer other than to provide your identifying information and indicate whether you will submit to the test.

This article is for general informational purposes only.  This article does not create an attorney-client relationship between the reader and Pepicelli, Youngs and Youngs PC or Brian T. Cagle.  Every situation is different and the information in this article may or may not apply to your specific situation.  You should not rely on this article as legal advice regarding what to do if an officer requests that you submit to a chemical test.  If you are charged with a DUI offense, you should contact a knowledgeable criminal defense attorney.

By Brian T. Cagle, Esq.

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