Written by attorney Douglas K. Marsico

Should I Refuse to take a Breath or Blood test to Determine BAC in Pennsylvania?

A very common question is whether a person should refuse to take a breath or blood test to determine blood alcohol content.

My advice is to take the test, especially if you are a first time offender. If you refuse the breath or blood test inPennsylvania, your driver’s license will be automatically suspended for 1 year for the refusal, regardless of the outcome on the criminal case involving the DUI. While you can challenge the resulting suspension for the refusal, your chances of winning are relatively slim. In such a hearing, the Pennsylvania Department of Transportation must only prove that the police officer informed you of the consequences for refusing the test, that the officer had a reasonable basis to make the arrest and request for the test, and that you in fact refuse to take the breath or blood test.

Further, even without a breath or blood test result, you will most likely still be charged with the DUI and the fact that you refused will be used as evidence against you. While proving a DUI without a BAC may be more difficult for the prosecuton, the suspension for the refusal will run consecutive to a suspension if convicted or accepted into the ARD program. For example, if you are a first time offender who is eligible for ARD, instead of losing your license for up to 60 days, you will lose your license for 14 months (12 months for the refusal plus up to 2 months for ARD). Indeed, if you take the breath test, depending on the results, your license suspension could be just 30 days or better yet, no suspension at all! For a repeat offender, the refusal will put the offender in the highest tier. Thus, a 2nd time offender who is convicted and had refused the breath/blood test will be looking at 90 days incarceration. If the offender had taken the test, perhaps the result would have been below a .16 in which case the mandatory sentence would have been 30 days. Better yet, the mandatory may have only been 5 days if the result was below .10!

So, my advice is to take the test. Don’t make the consequences of a bad mistake worse.

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