Chemical Test Refusals
This is one of the most difficult areas of the law that a Pittsburgh Criminal Attorney or a Pittsburgh DUI Attorney has to explain to a client. When a police officer has reasonable grounds to believe that a person was driving or operating a motor vehicle while under the influence of alcohol or a controlled substance, that officer will almost undoubtedly request that person to provide a sample of blood or breath to determine that person's blood alcohol content, or if they have taken a controlled substance. It is undeniably clear that in Pennsylvania, the person can refuse to provide such. It was debatable for a period of time whether there was a right to refuse such, but it was clear that the police could not force such person to provide a blood or breath sample. In light of the United States Supreme Court decision in Birchfield v. North Dakota, and reaffirmed in Commonwealth v. Evans, 153 A.3d 323 (Pa.Super. 2016), a case argued by Pittsburgh Criminal Attorney Robert E. Mielnicki, a person clearly has a constitutional right to refuse to provide a sample of blood, following an arrest for DUI. The police might obtain a warrant at that point, but such is seldom done.
Despite the fact that a person may properly refuse to provide a sample of breath and has a constitutional right to provide a sample of blood following an arrest for DUI, a refusal to provide such will lead to a driver's license suspension of 12 to 18 months. This is in addition to any suspension that will result, if the person is ultimately convicted of DUI.
Most clients simply cannot understand how this can be. The answer is because such is the law. There is no other answer an attorney can give. This somewhat unfair situation stems from the premise that driving is a privilege and not a right. Pittsburgh Criminal Attorney Robert E. Mielnicki disagrees with this, but the courts have held such.
THERE ARE WAYS TO WIN AN APPEAL OF A SUSPENSION FOR A CHEMICAL TEST REFUSAL
If an officer stopped you and suspected that you are DUI, he or she will read you certain warnings. More often than not, they will hand you PennDOT Form DL-26 which explains, among other things, that a suspension will come from a refusal to provide a breath or blood sample. If the officer fails to inform the suspect of the consequences of a chemical test refusal, no suspension will result from the refusal. There are other ways to defend against a suspension for a chemical test refusal. These include language difficulties leading to a difficulty understanding the warnings, requests for clarification of the warnings which were not repetitive but the officer deemed a refusal and the fact that the request was made before the suspect was placed under arrest for DUI.
THE NOTICE YOU WILL RECEIVE FROM PENNDOT WILL HAVE A DATE AT THE TOP. YOU HAVE 30 DAYS FROM THAT DATE TO APPEAL THE SUSPENSION AND GET A HEARING. YOU MUST ACT PROMPTLY IF YOU WISH TO CONTEST A SUSPENSION FOR A CHEMICAL TEST REFUSAL.
The law applicable to Chemical Test Refusals is primarily set forth in 75 Pa.C.S. § 1547.