Choice of chemical testing--breath, blood, urine, or saliva--is not the decision of the motorist stopped by police. If you have been pulled over based upon a reasonable suspicion and subsequently arrested for DUI based upon one of these tests, you need a skilled, experienced DUI defense lawyer right away.
At Shaffer & Engle Law Offices, LLC located in Harrisburg, Pennsylvania, we have over 65 years of experience representing individuals who have been arrested throughout Central Pennsylvania on DUI charges. Contact us today to discuss the facts surrounding your DUI test and any accompanying charges.
Elisabeth K.H. Pasqualini, Esq. can help you fight your DUI charges and can explain the implication of Pennsylvania's implied consent law.
A Special Note on Pennsylvania DUI Law
Many states, including Pennsylvania, have enacted statutes, often referred to as "implied consent laws," which provide that any person who operates a motor vehicle upon the public highways is deemed to have consented to a chemical test of his/her blood, breath, urine, or saliva for the purpose of determining the alcoholic content of his/her blood whenever he/she is arrested or taken into custody for any offense involving operating a motor vehicle while intoxicated. In these scenarios, the arresting officer must have reasonable grounds to believe that prior to the arrest, the person was driving in an intoxicated condition or under the influence of intoxicating liquor.
An officer may record a chemical test refusal if the defendant refuses to take the test the officer requests. It is the choice of the officer and not the defendant as to what test will be taken--blood, breath, urine, or saliva. In the case of Mooney v. Com. Department of Transportation, the defendant was offered to take a blood test by the officer. However, because of her fear of needles, she expressed to the officer that she would gladly take a breath test. Despite her request to take a breath test instead, a refusal was recorded and her license was administratively suspended.
Please note, that the failure to administer Miranda warnings or a defendant's refusal to take field sobriety tests will not prevent the results of any DUI chemical tests from being admitted into evidence in a prosecution for driving while intoxicated. However, in Pennsylvania, the police must always advise a suspect that they do not have the right to remain silent and that a refusal to take a chemical test will result in an administrative license suspension. This is called an O'Connell warning and it must precede any testing request by police.
The results of Portable Breathalyzer Testing (PBT) may not be offered into evidence at a summary proceeding on a charge of driving under the influence (DUI). The PBT is an approved device by the Department of Health for establishing probable cause; however, it is not a device that has been calibrated and tested for accuracy. While a PBT may establish that a suspect has consumed alcohol, it does not measure with certainty the amount of alcohol that a driver has consumed, and the Pennsylvania Courts have held that it is not admissible in court to establish the necessary elements of DUI.
Problems with Breathalyzer Testing
There are several problems, besides the inherent fallibility of the machine and user error, that may arise during a suspect's chemical breath testing. For instance, the presence of "mouth alcohol" may present a problem for the Commonwealth in proving its case beyond a reasonable doubt. When a person orally consumes an alcoholic beverage ( see our list of alcoholic beverages and effects on the body), some of the ethanol alcohol remains for a time in and around the tissues of the mouth. Residual mouth alcohol may also be present in the mouth of a person who has recently gargled with a commercial mouthwash, used a breath spray containing alcohol or ethanol based ingredients, used a cough medicine or spray, or some other substance which contains alcohol. If a breath sample is obtained relatively shortly after an alcoholic beverage or some other substance (ie: mouthwash) is consumed, some of the remaining or "mouth" alcohol may be carried into the breath sample. If residual mouth alcohol is carried into the alcohol concentration rather than the suspect's actual BAC or blood-alcohol concentration. In other words, the total alcohol concentration in the suspect's blood can be greatly skewed by the presence of "mouth alcohol" that has been ingested, but not entered the blood stream.
In order to eliminate the possibility of "mouth alcohol" contamination, the breath testing regulations of the Department of Transportation require that the police subject a suspect to a twenty (20) consecutive minute observation period. 67 Pa.Code Section 77.24(b). This is to ensure that the suspect does not consume alcohol, burp, regurgitate (alcohol comes back into mouth via stomach), or place any other substances into their mouth that may otherwise invalidate the test results.
The Commonwealth always has the burden of proving a specific blood alcohol content (BAC) in a DUI charge. If you have been subjected to a DUI test and arrested on a drunk driving charge, you need an attorney who understands the law. Timing is critical. Contact us to discuss your legal rights and options with one of the DUI lawyers at Shaffer & Engle Law Offices, LLC.
Independent Chemical Test
"I was just arrested for DUI and had to give a blood sample, but I honestly don't think I was that drunk, what can I do?" The Pennsylvania Vehicle Code Section 1547(h) permits a motorist to have his or her own personal physician perform an additional chemical test of breath, blood, or urine and the results of that independent test are admissible into evidence. This does not, however, give a motorist the right to an independent test of the original blood sample that was drawn under the authority of the Implied Consent Law. Further, there is no requirement in the Implied Consent Law that requires police to inform a motorist of the statutory right to have an additional test performed by the motorist's own physician. Moreover, the motorist's desire to have an independent chemical test by their own physician cannot delay the administration of the Commonwealth's request for a chemical test done under Section 1547(a). Upon removal from the police testing site, you should immediately contact your physician or independent chemical testing agent to provide a blood, breath, or urine sample that may be used later to prove that the original sample obtained by the Commonwealth lacked accuracy.
Learn more about DUI and chemical testing on our Criminal Law Blog.