5 Things to Know about Appealing your PennDOT DUI Chemical Test Refusal Driver’s Licenses Suspension in Pennsylvania – How will PA treat a New Jersey DWI Refusal?    

I’ve written previous articles on Drunk Driving (Driving Under the Influence (DUI)) in Pennsylvania It is important to understand that you should never refuse a chemical test if you are stopped and arrested for suspicion of drunk driving. A refusal will never help your criminal case and in many cases, it will make it worse!

You Do NOT Have a Constitutional Right to Refuse the DUI Chemical Test

The law in Pennsylvania and New Jersey prohibits a person from refusing a chemical test and there is no constitutional right to refuse a blood, breathalyzer, or urine test (implied consent.) If you choose to refuse, the officer will not exert any force to compel you to take the test but will simply document the fact that you refused.  Legislative purpose of implied consent law is to keep drunk drivers off the roads.

The operation of a motor vehicle in Pennsylvania, like New Jersey is a privilege subject to conditions as the legislature may see fit to impose.

What is a Police Officer Required to Do During a Drunk Driving Arrest? 

When a person refuses a chemical test the police officer is required to inform the person arrested for driving while intoxicated of the consequences of the failure to submit to the chemical test. Those warnings include the fact that there is no legal right to refuse and in doing so will result in immediate driver’s license suspension.

Further, in Pennsylvania, when a person refuses a chemical test, the assistant district attorney (prosecutor) can use evidence of the refusal to infer guilt on the part of the accused. 

Pennsylvania, like New Jersey, considers anything other than an unqualified, unequivocal assent to the officer’s request as a refusal. This would include an accused person simply not saying anything in response to the officer’s request to take a chemical test.

Who Has the Burden of Proof at a PENNDOT DUI Refusal Suspension Appeal

In order to sustain a one-year license suspension under implied consent law, PennDot (Department of Transportation, Bureau of Driver Licensing) has the burden of proof 

PennDOT must show that the driver:

(1) was placed under arrest for DUI,

(2) was asked to submit to a chemical test,

(3) the driver refused to do so, and

(4) was specifically warned that refusal would result in the suspension of his driver’s license;

When and What Must the Driver Show During a PennDot Refusal Suspension Appeal? 

If PennDot satisfies this burden of proof, it then shifts to the driver to prove by a preponderance of the evidence that his or her refusal his refusal was not knowing or conscious or that he was physically unable to refuse. 

Bonus – Here are things that you should keep in mind about PennDot Refusal Suspension Appeals 

• Knowing and conscious” standard for a refusal to submit to chemical testing must be strictly construed, as it creates exceptions to the clear language and policy of the implied consent law

• The Implied consent warning issued by a police officer is not required to contain any specific wording; it must only inform a licensee (driver) that his operating privilege will be suspended upon refusal to submit to chemical testing

How will Pennsylvania treat a New Jersey DWI refusal?

If you refuse a chemical test in New Jersey it will likely cause a driver’s license suspension in Pennsylvania as well. This means that if you commit a DWI in New Jersey but maintain a Pennsylvania driver’s license, New Jersey and Pennsylvania will suspend your operating privileges. This is not the case for every DUI, but refusals are treated differently.

While there is case law which prohibits police from taking a blood sample without a search warrant this, more than likely, will not be a defense against a driver’s license suspension for a Pennsylvania driver. New Jersey, for the most part, uses the Alcotest, which is a form of breathalyzer, and usually never takes blood to establish impairment or intoxication.

Further, the United States Supreme Court case which specifically addresses drunk driving and blood test refusals does not extend to breathalyzers. The Supreme Court specifically stated that blood tests and breath tests are different in that, a blood test is a more severe intrusion on a person’s liberties.

If you or a friend are facing a driver’s license suspension because of DUI/DWI Refusal in Pennsylvania or New Jersey, contact our law firm today to discuss your case! 

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