Our law firm represents individuals charged with driving under the influence (DUI) in Pennsylvania and driving while intoxicated (DWI) in New Jersey. We never advise clients to refuse a chemical test, because the refusal, in and of itself, will result in a civil suspension of a driver’s license. This suspension is outside of any criminal proceedings so it will never help your criminal case.
New Jersey is different from Pennsylvania because it frequently employs the alcotest as opposed to blood draws or breathalyzers. The alcotest is a form of a breathalyzer and therefore the landmark Supreme Court decision pertaining to drunk driving blood draws do not apply.
The Birchfield Decision, Blood Draws, & Search Warrants
The Supreme Court, in its decision in Birchfield v. North Dakota held that a blood draw, incident to a DUI arrest, is a constitutionally protected search that is subject to the search warrant requirements of the 4th Amendment. Based on this ruling, the laws that provide for increased penalties for refusing a blood draw are unconstitutional. In Birchfield, the Supreme Court determined that blood draws were too invasive and provided police with much more personal information then merely a blood alcohol reading. Breath tests (breathalyzer) are much less invasive and therefore warrantless breath tests remain permissible as a search incident to a lawful arrest.
Prior to this case, Pennsylvania DUI statutes contained higher criminal penalties for refusing to participate in a warrantless blood draw, but this obviously now violates the decision of Birchfield. Defendants who refused the blood test, had the benefit of being charged and sentenced under the lowest DUI as opposed to the highest (criminal penalties for refusal of blood draw). In Pennsylvania for those charged with criminal refusals, it eliminated the mandatory seventy-two (72) hour period of incarceration and for those facing a third DUI, this removed the mandatory minimum one-year in state prison to just ten (10) days of incarceration. Refusal is therefore no longer a criminal penalty, and these maximum penalties no longer apply for blood draws. Even if the criminal penalties do not apply, however, Pennsylvania and New Jersey can still suspend a person’s driver’s license for a year for the refusal alone.
Birchfield & Consent
Birchfield also changed the concept of consent. If a person consented based on the threat of criminal penalties, the consent wasn’t valid. Since the Birchfield decision, Pennsylvania has removed the criminal penalty section of the DUI blood draw consent form and police no longer can read anything or advise suspects that failing to consent to the blood draw will result in criminal penalties. If consent is given only after being advised that refusal would result in increased criminal penalties, it is likely the Court will find that consent was not voluntary.
Keep in mind that police in New Jersey and Pennsylvania can still stop and arrest someone for suspicion of DUI or DWI. Pennsylvania and New Jersey both contain general impairment DUI/DWI statutes. In addition, there are general impairment statutes with regards to illegal drugs and narcotics. The prosecution can introduce testimony with regards to the officer’s observations of the suspect based on performance of field sobriety testing and other observations based on the officer’s education, training and experience in the field.
Refusing a breathalyzer will never help your criminal case and will subject you to additional civil penalties (license suspension). While you will not face any additional criminal penalties for refusing a blood draw, you will still face a civil license suspension. New Jersey rarely uses blood draw so the Birchfield has really no affect on New Jersey Drunk Driving cases. Birchfield only affects Pennsylvania cases involving blood draws refusals with criminal penalties. We always advise clients not to refuse because it will result in a civil license suspension of your drivers’ license. If you refuse, the police won’t have blood evidence but the prosecution can still convict you General Impairment DUI/DWI in addition to DUI/DWI pertaining to drugs and Narcotics. Refusing a blood draw may subject you to a lower Tiered DUI offense based on BAC but this assumes, the blood evidence is admissible against you. For more information contact our law firm!
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