People are charged with DUIs all the time. While the authorities often want drivers to submit to mandatory blood or breath tests, that doesn’t always happen. As such, many defendants face DUI charges with no official measurement of their blood alcohol concentration (BAC).
If you refuse to take a breath test after being arrested for a DUI, you can still be charged. It might be somewhat harder for prosecutors to prove the case against you, but it may be possible depending on what other evidence they have. For example, if the police noticed slurred speech, a strong odor of alcohol, and open alcohol containers in the car, they may have enough evidence to charge and maybe even convict you without a breath test. Refusing tests ultimately doesn’t stop charges, and it leads to additional automatic penalties.
Get a private, free case review from our Philadelphia, PA DUI lawyers by calling Kenny, Burns & McGill at (215) 423-5500.
Do I Have to Take a Breath Test to Be Charged with a DUI in Pennsylvania?
While chemical testing, such as a blood or breath test, is mandatory after a driver is arrested for a DUI, not all drivers agree to submit to testing. Even without a breath test, you can still be charged with a DUI.
According to 75 Pa.C.S. § 3802(a), it is illegal to operate or be in actual physical control of a vehicle after consuming enough alcohol or other intoxicating substances to make you incapable of driving safely. A DUI per se may be charged if your blood alcohol concentration (BAC) is at least .08. However, you can still be charged under this first general intoxication section, even if the authorities do not measure your BAC.
If the police reasonably believe you are too intoxicated to drive safely, they can arrest you, and you may be charged without a breath test.
Other Evidence to Support DUI Charges Without a Breath Test
Without a breath test, the police may still have enough probable cause to arrest. Often, arrests and charges are based on things observed by the police during the traffic stop.
First, most local police in Pennsylvania use blood tests instead of breath tests. This is especially true if you were suspected of drugged driving, as a breath test won’t show drugs in your system anyway. Typically, the State Police are the ones to use breath tests for DUI arrests.
The arresting officers in DUI cases may be called in to testify in court about what they observed. They may testify about observing the driver’s slurred speech, delayed reflexes or motor skills, erratic driving, and other things they personally saw.
The police may also conduct field sobriety tests, although you are allowed to refuse these. Field sobriety testing often involves things like balancing on one leg, walking heel-to-toe in a straight line, or following a pen with your eyes. These tests are typically not admissible as evidence in court, but the police may use them to establish probable cause for arrest.
If the police notice anything inside the car to suggest the driver is intoxicated, it may be used as evidence to justify DUI charges. For example, they might notice open containers of alcohol in the front seat.
Ultimately, it is up to the trier of fact – usually the judge in DUI trials – to determine, based on the totality of the circumstances, whether there is sufficient proof that you were drunk.
Is it a Good Idea to Refuse Breath Testing in Pennsylvania DUI Cases
It may not be a good idea to refuse to submit to a breath test after being arrested for a DUI. Under the state’s implied consent law, all drivers must submit to mandatory chemical testing after being arrested for a DUI. However, the police may not force you to take a breath test if you refuse.
If you refuse to submit to testing, there are legal penalties. According to 75 Pa.C.S. § 1547(b), you will lose your license for at least 12 months, even if you are ultimately not charged with a DUI. However, our Philadelphia criminal defense lawyers can help you fight these penalties if you were not advised of them when you refused.
Furthermore, under subsection (e) of this law, your refusal to submit to chemical testing may be admissible as evidence. While the law specifically states that your refusal does not create a presumption of anything, it may still be considered along with other evidence against you.
What if I Refuse Mandatory Testing After Submitting to a Roadside Breath Test?
Drivers pulled over for suspected DUI might end up submitting to more than one breath test.
The police may ask you to blow into a roadside or portable breath test device before you are arrested. The results of this test may not be admissible as evidence in court, but they may establish probable cause to arrest. After arrest, you are required to submit to mandatory chemical testing, typically using more sophisticated equipment, and those results are admissible in court.
If you submit to a roadside pre-arrest test but later refuse mandatory chemical testing at the police station, you may still face legal penalties for refusal. Since the portable breath test results are inadmissible in court, the authorities will not have a BAC measurement, but you may still be charged.
How Refusing Breath Testing May Affect DUI Charges
Ordinarily, the grading of DUI charges is based on the defendant’s BAC and prior DUI convictions. The higher your BAC and the more DUI violations on your record, the higher the charges and the more severe the penalties.
If you refuse to take a breath test, there is no BAC on which to base your charges. However, if you refused to take a breath test and have no prior DUI violations, you may be charged under 75 Pa.C.S. § 3803(b)(2). In that case, you would face misdemeanor charges. If you have one prior offense, you may be charged with a first-degree misdemeanor. If you have 2 prior offenses, you may be charged with a third-degree felony. For 3 or more prior DUI violations, you may face a second-degree felony.
What to Do if You Are Charged with a DUI After Refusing Breath Testing
If you refuse to submit to a breath test or there is no BAC measurement for any other reason, you should contact a lawyer for assistance immediately.
Your attorney can examine other evidence that the police and prosecutors might have to determine the strength of the case. Remember, even without a breath test, you could still be convicted of a DUI. Your attorney should know how to challenge the evidence and help you defend yourself.
Ask Our Pennsylvania DUI Lawyers to Review Your Case
Get a private, free case review from our Ardmore, PA personal injury lawyers by calling Kenny, Burns & McGill at (215) 423-5500.
