While who refuses a breathalyzer would face a 12 month license suspension, the new ignition interlock law allows a person to be eligible after serving 6 months on suspension.

Alfonso Gambone
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A Philadelphia criminal defense lawyer representing accused persons throughout Pennsylvania and New Jersey.

I have written previous blog articles about DUI in Pennsylvania which specifically focus on refusing a chemical tests following an arrest for drunk driving. In Pennsylvania, the 2 most common chemical tests are a blood and a breathalyzer. While the United States Supreme Court decision in Birchfield v. North Dakota has called into question the constitutionality of blood draws, breathalyzers remain widely accepted within the Commonwealth. Further, the US Supreme Court’s decision in Birchfield doesn't apply to breathalyzers. In addition, many courts in the Commonwealth have identified issues within the Birchfield decision which wouldn’t necessarily preclude the introduction of blood evidence from a DUI prosecution. 


What Should You Do If You Are Stopped For DUI? 

If you are arrested for drunk driving in Pennsylvania, you should not refuse either a blood or breath test. Even if you are found not guilty of the underlying drunk driving offense under Section 3802(a) (1) – refusal (highest tier DUI), PennDot can and will suspend your driver’s license. It’s important to understand that a license suspension is an administrative action which does not fall under a criminal prosecution. In other words, an acquittal in criminal court is irrelevant for the purposes for a PennDot license suspension. 

How does a refusal effect Ignition Interlock Eligibility? 


While your criminal defense lawyer can appeal the PennDot suspension in court, the evidentiary standard at a civil hearing is much lower than that of a criminal prosecution. While every case is different, there is a low probability of a successful PennDot license suspension appeal. In addition, unlike a criminal conviction for drunk driving under Sections 3802 (a) – without accident, (b), (c), and (d), a first time offender refusal DUI is not immediately eligible for Pennsylvania’s new Interlock License. While normally a person who refuses a breathalyzer would face a mandatory minimum 12 month license suspension, the new ignition interlock law allows a person to be eligible for the program after serving 6 months on suspension. Repeat DUI refusal offenders face an 18 month license suspension but are eligible for the ignition interlock license after 9 months. 


The Bottom Line--Don’t refuse because it will never help your criminal case? 


The bottom line is that if local or state police ask you to submit to a blood or breathalyzer you should do it. Refusing any of these tests will not in any way help your criminal case and will simply make it worse. Further, the refusal will create an additional issue with PennDot which your criminal defense lawyer will more than likely not be able to mitigate through a negotiation with a PennDot lawyer. 


Ignition Interlock Violations -  What you need to know 


Keep in mind that if you're admitted to the Ignition Interlock Program, any violations in the program could result in a mandatory minimum $300 fine, up to a maximum of $1,000, and a possible 90 day jail sentence. Also, the court will extend the period which you must maintain the ignition interlock device in your car for 1 year. Understand that the device isn’t free and you will need to lease the device from one of the approved companies within the Commonwealth. While the cost may vary depending on the vendor, the average cost associated with the lease is between $900-1300 per year.  


For more information on the Ignition Interlock Limited License program and DUI defense I encourage you to keep reading my blog and visit my free download section. 

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