Philadelphia Criminal Law Blog : Philadelphia Criminal Defense Lawyer & Attorney : Peter C. Amuso Law Firm : Montgomery, Bucks, Chester, Delaware County Pennsylvania

I've written in the past about the little-known, but very serious, provision of the Pennsylvania Vehicle Code which says that while no one has to submit to a blood test or breathalyzer after a DUI arrest, anyone who refuses loses their license for a year.  My advice remains the same: CONSENT TO THE BLOOD TEST.  CONSENT TO THE BREATHALYZER.  DON'T REFUSE.  Results from those tests can still be challenged in a criminal case.  However, refusing those tests means your license will be suspended in a civil matter, where the grounds for a challenge are very narrow.

And they keep getting narrower.  I had recently written about the Yourick decision, but it has now been overturned by the Commonwealth Court.  The matter is on appeal to the Pennsylvania Supreme Court, but that will take a year or two.  Further, the Commonwealth Court just ruled that if you grab the required written warnings out of the hands of the police officer arresting you, he does not have to read you the warnings.

Again, the bottomline is that if you are put under arrest for DUI, and asked to consent to a blood test or a breathalyzer, CONSENT!

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This past Thursday, I was waiting for the elevator at the Criminal Justice Center, on my way to speak to my fellow Harvard alums about my recent run for Montgomery County District Attorney at the annual meeting of the Harvard Law School Association of Philadelphia.  As usual, there was a long wait, and as usual, I started scrolling through my e-mails on my iPhone.  Someone e-mailed me a new Commonwealth Court decision called Yourick vs. Bureau of Driver Licensing, and as I read it, I dropped my iPhone and missed the elevator: the Court had overturned PennDOT's decision to suspend someone's driver's license again, this time because the warning sheet issued by PennDOT was confusing.

As I have written before, if a police officer suspects that you have been driving under the influence of alcohol or drugs, he can ask you to submit to a chemical (blood or breath) test.  If you refuse, PennDOT automatically suspends your drivier's license for 1 year.  You can delay the suspension by demanding a hearing in front of a judge, but the judge has only narrow grounds to prevent PennDOT from suspending your license.  My conclusion in such a situation remains the same: DON'T REFUSE.  SUBMIT TO THE TEST.  It is easier to fight the test results in criminal court then it is to fight a refusal in civil court against PennDOT.

Nonetheless, the Yourick decision opens yet another possibility to keep your license after you refuse a chemical test.  The Court ruled that the December 2006 version of the PennDOT warnings were confusing because they were unclear on whether you would lose your license if this was your first DUI offense.  (You will lose your license for 1 year, even if it is your first refusal.)  Ms. Yourick testified specifically that she read the warning sheet carefully, and decided to refuse the chemical test because it had been her first arrest for DUI.  The Court ruled that the form was confusing and therefore did not provide the required warnings.  The Court upheld the lower court's decision to let Ms. Yourick keep her license despite her refusal.

Like the other recent Commonwealth Court decision, this is narrow grounds for a successful appeal (the latest version of the form appears to have corrected this grammtical issue), and does not change my call to consent to the test.  Again, though, it shows that attention to detail (even punctuation on a government form) lays the foundation for success.

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In my last post, I wrote that once you refused to take a chemical test to determine your blood alcohol level, PennDOT would suspend your driver's license for one year.  I did note that you would be entitled to a hearing in front of a judge before PennDOT could take your license, but that the judge would have only very narrow grounds to prevent PennDOT from doing so.

One of those narrows grounds, however, was recently re-affirmed by the Commonwealth Court.  (This is the appeals court that hears only civil cases involving governmental entities.  PennDOT license suspensions end up here since PennDOT is a government agency.)  The case is  called Taylor v. Bureau of Driver Licensing, and it overturned PennDOT's decision to suspend Mr. Taylor's license after Mr. Taylor refused to take a chemical test.

The Commonwealth Court allowed Mr. Taylor to keep his license based on a little-known Pennsylvania law called the Municipal Police Jurisdiction Act.  Under this Act, police from one township or borough have limited authority in other townships or boroughs.  (They can still arrest someone in another township if they are in hot pursuit, however, so you can't escape the police by outrunning them to the township line.)

Here, Mr. Taylor was arrested in Upper Darby Township by a police officer from Nether Providence Township.  The Nether Providence officer had been invited to staff the Upper Darby DUI checkpoint by a police officer from Brookhaven Borough.  There was no evidence of any connection between the Upper Darby police and this particular Nether Providence officer.  Because the prosecution failed to establish that the Nether Providence officer had the proper authority to make the arrest of Mr. Taylor in Upper Darby, Mr. Taylor got to keep his driver's license.

The factual circumstances of the Taylor case are not common, but this situation does happen.  More importantly, though, this case is just another example of how the best defenses are often found in the smallest details, and thus attention to detail is key to establishing the best possible criminal defense.

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The scenario plays out time and time again every weekend across Pennsylvania: the police pull over a driver, have the driver conduct some field sobriety tests and then blow into a hand-held breathalyzer.  When all this has been completed, the police officer requests that the driver submit to a blood test at a local hospital to determine his blood-alcohol level.  The driver freezes and thinks to himself, "Should I co-operate?  They just told me I blew above the legal limit- why should I agree to give the police even more evidence against me?  What will happen if I refuse?"

Unfortunately, the Pennsylvania courts have ruled that you don't have the right to talk to attorney before deciding whether or not to consent to the DUI blood test.  (Although the Pennsylvania Supreme Court recently agreed to consider whether or not you should have that right.)  So let me offer some advice now for you to file away for that difficult moment: CONSENT TO THE BLOOD TEST.  DON'T REFUSE.

If you refuse to take the blood test, you will lose your license for one year.  Period.  End of story. 

Under Pennsylvania law, when each of us accepts our drivers license from the Commonwealth, we are consenting to a blood test requested by a police officer who believes we have been driving under the influence of drugs or alcohol.  We have the right to withdraw that consent, and to refuse that test, but then PennDOT can simply take back the driver's license it issued to us based on our promised consent.  This is not a criminal punishment, but merely a civil action.  You are entitled to a hearing in front of a judge, but the grounds on which the judge can deny PennDOT's request to suspend your license are extremely narrow.

On the other hand, if you agree to the blood test, then your license will not be suspended until after you are convicted in a criminal hearing.  It is possible to get the results of the blood test thrown out of court if the police did not follow the proper procedures, regardless of how high the blood test results are.  Thus you are much, much better off consenting to a DUI blood test.  (This same analysis applies if the police request that you to submit to a sophisticated breathalyzer test- these machines are carefully calibrated, and must be operated by trained technicians, and are very different from the hand-held devices police in the field use.)

The truth is that the results of the hand-held breathalyzer are not admissible evidence in court, but if you refuse to give the police evidence that can stand up in court- blood tests or sophisticated breathalyzers- you will lose your license automatically for one year.  Consent to the tests, and keep your license while your lawyer fights against your criminal conviction.

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