In California, officers are supposed to read an admonition which basically informs someone that there is an implied consent to a chemical test and consequences if you refuse. If after the admonition you don't agree to take a breath or blood test, even if you say no, but then change your mind after, it can be viewed as a refusal. Note it is a bit more complicated than that, but this gives you a general idea of how it works in CA. It may be similar in PA. You should contact some attorneys in your area to discuss this in more detail with them.
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Of course. BEcause of the Implied consent law, the issue of refusal is often misunderstood by law enforcement officers. You should have been advised of the consequences the "O'Connel Warnings." Generally, the officer will read a DL-26 form and ask you to sign it.
Please remember that a refusal has bother criminal and civil consequences. Criminally, it can enhance the penalty (even in ARD). However, fighting a DUI charge where there is no evidence of BAC is actually easier for the defense due to the complacency that exists in law enforcement is moving from the stop to the arrest without investigating and documenting the driver's actual inability to safely operate a motor vehicle.
As a collateral consequence of the refusal, PennDOT can suspend your operating privileges for a period of one year. If you operate a motor vehicle during that one year period, you face a mandatory minimum penalty of 60 days in jail.
If you receive notice from PennDOT that your license is to be suspended because of the refusal, you will have 30 days from the "mail date" on the letter to file an appeal with the Court of Common Pleas. Therefore, it is important to secure counsel as soon as possible.
In some counties, the DA has imposed a condition as part of the ARD program restricting the defendants right to challenge the license suspension. In this case, it appears you have a defense to to the issue of the refusal. Therefore, it is imperative that you contact a qualified and experienced DUI Defense Attorney in your area to discuss your case. In some cases, the attorney may be able to intervene with the officer and request that the officer not submit the refusal paperwork to PennDOT.
Yes. If you get a suspension letter from Penndot, you have a right to appeal the suspension within 30 days and you will get a trial date in Civil court where Penndot would have to prove that the officer went through the proper procedure in asking for the test. You should retain an experienced local lawyer ASAP.
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