Most drivers know that the legal limit for general motorist (21 years and older) in the US is 0.08% BAC.
Drivers found to be operating a motor vehicle with a BAC of 0.08% or more are considered to be driving under the influence and can be arrested on DUI charges.
However, there are other drunk driving laws that are not so straightforward and well-understood among drivers. For example, one of the most common questions that we hear relating to DUI law in Pennsylvania is:
“Is it legal to refuse a breathalyzer test if I am pulled over in PA?”
The answer to this question is not so straightforward. Whether you were recently arrested on suspicion of DUI, or are simply wondering what your rights are in the event that you happen to be pulled over, this article is intended to help you better understand the laws regarding chemical breath tests in the State of Pennsylvania.
So, Can I Legally Refuse To Submit To A Breathalyzer Test In Pennsylvania?
Pennsylvania has an implied consent law which requires all drivers to submit to a blood, breath or urine test, if lawfully arrested by a police officer who has reasonable cause to believe that a driver is under the influence of alcohol or a controlled substance.
Specifically, Pennsylvania’s implied consent law states that:
“Any person who drives, operates or is in actual physical control of the movement of a vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving:
1) in violation of section 1543(b)(1.1) (relating to driving while operating privilege is suspended or revoked), 3802 (relating to driving under influence of alcohol or controlled substance) or 3808(a)(2) (relating to illegally operating a motor vehicle not equipped with ignition interlock);”
In other words, by driving a motor vehicle in the State of Pennsylvania you are agreeing to submit to an official chemical breath test (and other chemical tests) if you are arrested on suspicion of driving under the influence.
Additionally, the law states that any person who operates a vehicle in the State of Pennsylvania consents to a providing a chemical test (breath, blood and / or urine) if:
“…involved in an accident in which the operator or passenger of any vehicle involved or a pedestrian required treatment at a medical facility or was killed.”
You can find the entire implied consent law in section 1547 of the Pennsylvania Motor Vehicle code here.
Pre-arrest Breath Test Vs. Official Breath Test
There is a very important difference between a preliminary breath test and an official, post-arrest chemical breath test.
Pre-arrest Breath Test
An officer may ask you to submit to a breath test prior to arresting you. This test is administered with a portable breath tester that has been approved by the Department of Health. The point of this breath test is to help the officer determine whether or not he or she should arrest you for driving under the influence of alcohol.
However, the law does not require you to submit to this type of breath test or any other roadside field sobriety tests.
Post-arrest Chemical Breath Test
Pennsylvania’s implied consent law only applies to official, post-arrest chemical tests. If you are lawfully arrested on suspicion of driving under the influence, you will be taken to either the police station or a hospital where you will be asked to submit to an official chemical breath, blood or urine test.
These chemical breath tests are different than the roadside “breathalyzer” tests that most people think of and are administered on different devices than the portable breath testers that most people think of. Pennsylvania’s implied consent law does require you to submit to a post-arrest breath test if asked to do so by a law enforcement officer.
The Officer Must Warn You Of PA’s Laws & Penalties Regarding Chemical Test Refusal
If arrested on suspicion of DUI, it is the duty of the law enforcement officer(s) to adequately inform you of Pennsylvania’s implied consent law before administering a chemical breath test. If a police officer fails to properly warn you of the penalties and consequences of a chemical test refusal, then you may be able to challenge the arrest.
What Happens If I Expressly Refuse A Breath Test?
Technically speaking, you could refuse an official breath test because police cannot physically force you to take the test. However, by doing so, you subject yourself to the mandatory penalties associated with a chemical test refusal (see below), and will still face full consequences of a DUI if later convicted.
What Are The Penalties For Refusing A Chemical Breath Test?
The penalties for refusing a chemical test can vary depending on any prior offenses that you may have had. We break down the penalties in different scenarios below:
Chemical Test Refusal With No Prior DUI Convictions
If you refuse a breath, blood and/or urine chemical test then your license will automatically be suspended for a period of 12 months.
Chemical Test Refusal With Prior DUI Conviction, Prior Refusal Or Suspended License
Drivers who have previously refused a chemical test or who have a prior DUI conviction will have their license suspended for 18 months if they refuse to submit to a chemical test.
Additionally, drivers who are arrested for driving with suspended or revoked driving privileges are subject to a license suspension of 6 months if they refuse to submit to a chemical test.
Additionally, if you refuse a chemical test then you will be subject to the penalties associated with a Highest Intoxication DUI (e.g. driving under with 0.16% BAC or higher) if you are convicted of DUI.