Written by attorney Elisabeth K. H. Pasqualini

Implied Consent for Breathalyzer Testing and the O'Connell Warnings in PA

As condition of maintaining driver's license within Commonwealth, all drivers are subject to implied consent requirements of motor vehicle code and must submit to blood and breath test under appropriate circumstances. Failure to do so, will result in the suspension of their driver's license for a period of at least 12 months.


Elisabeth K.H. Pasqualini, DUI Attorney, Harrisburg, PA

All drivers in PA (includes those from out-of-state) are required to submit to blood alcohol content ('BAC') testing by breath, blood or urine when requested to do so by police. Failure to do so will result in the suspension of their driving privileges for at least 12 months. The PA Supreme Court, in O'Connell held as follows:

Accordingly, where an arrestee requests to speak to or call an attorney, or anyone else, when requested to take a breathalyzer test, we insist that in addition to telling an arrestee that his license will be suspended for one year if he refuses to take a breathalyzer test, the police instruct the arrestee that such rights are inapplicable to the breathalyzer test and that the arrestee does not have the right to consult with an attorney or anyone else prior to taking the test. An arrestee is entitled to this information so that his choice to take a breathalyzer test can be knowing and conscious and we believe that requiring the police to qualify the extent of the right to counsel is neither onerous nor will it unnecessarily delay the taking of the test.


Here, the Supreme Court is attempting to eliminate confusion when someone is arrested and given their Miranda rights. Miranda rights do not apply to a request to provide a BAC test. This is because under the implied consent law, 75 Pa.C.S.A. Section 1547(a), all motorists have implicitly consented to the testing of their blood or breath for the presence of alcohol or a controlled substance to the extent it impacts their present ability to drive or operate a motor vehicle.

The impact of the failure to properly provide a BAC test to police, either a breathalyzer or blood test is severe. You may lose your license for one (1) year in addition to any suspension received if convicted of DUI. The loss may be up to 18 months if you have previously refused a BAC test. You should always be cooperative with an officer's request to take a BAC test.

If you have been charged with a Driving Under the Influence and have refused the breathalyzer or blood test, contact experienced DUI counsel immediately. You may contact Shaffer & Engle Law Offices, LLC toll free or email us today.

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