Refusing a drunk driving blood test may not be criminal offense but it can still cause you problem in Pennsylvania and New Jersey
Pennsylvania and New Jersey maintain strict laws regarding drunk driving and driving under the influence of drugs (DUI/DWI) or other controlled substances. With that said, Pennsylvania and New Jersey also maintain implied consent laws with regards to chemical testing following an arrest for suspicion of DUI. This means that both states have a compelling interest to keep drunk driving at a minimum to safeguard other drivers. All drivers have consented to chemical testing as a condition of their licensing requirements in Pennsylvania and New Jersey.
Blood Testing vs. Breath Testing (Breathalyzer; Alcotest)
If you’re stopped for suspicion of drunk driving, the police officer will ask that you submit to a breathalyzer or blood test. Breathalyzers are not invasive and simply require that the person breathe into a machine which will calculate the person’s blood alcohol content based on the mathematical formula within the device. Breathalyzer testing, however, isn’t as accurate as blood testing; more and more jurisdictions are moving toward blood testing.
While New Jersey, for the most part uses the Alcotest (a form of breathalyzer), Pennsylvania utilizes both breath testers and blood testing. A few years ago, the Supreme Court of the United States ruled that blood testing is so invasive that the level of invasion in a person’s private matters requires a search warrant. Police in Pennsylvania, therefore, can’t obtain a blood sample without a search warrant. Police officers in most cases however, will not obtain a search warrant to compel a blood test.
A DUI refusal is no longer a crime in Pennsylvania but PENNDOT will still suspend your driver license!
Following this Supreme Court decision (Birchfield v. North Dakota), the Pennsylvania’s law regarding criminal offenses for the refusal to submit to a blood test became unconstitutional. With that said, however, Pennsylvania still has a compelling interest to keep drunk drivers off the road and blood testing remains an accepted chemical testing procedure for drunk drivers in the Commonwealth. If, however, a person refuses a blood test, they cannot be criminally prosecuted for that offense. The prosecution will have to move forward with the case on a general impairment DUI statute, under Title 75, Section 3802A1.
While not a criminal offense, PennDOT can still administratively suspend a person’s driver’s license for a refusal, and this will occur regardless of what occurs in the criminal case. A person’s license will be suspended even if they are acquitted at trial and their only option is to appeal to the Commonwealth Court. It is important to keep in mind, however, that in Commonwealth Court and the burden of proof is preponderance as opposed to beyond a reasonable doubt.
For the most part, this issue doesn’t occur in New Jersey as the Garden State uses breath testing for virtually all of its drunk driving cases (DWI). There is no issue regarding a search warrant in these New Jersey drunk driving cases because the Supreme Court made a clear distinction between blood test and breath testing in its Birchfield decision.
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