You’ve been pulled over. The officer suspects you’re intoxicated and asks you to take a breathalyzer test. If you refuse, you are not in the clear as you might think. Thanks to implied consent laws, refusing a breathalyzer test can still result in penalties. Implied consent laws state that when you apply for a driver’s license, you submit your consent to sobriety tests. These laws are based on the rationale that driving is a privilege, not a right.
These laws are highly contested for a couple of reasons. Many question whether or not they actually keep the roads safer. Additionally, many see them as a violation of the fourth and fifth amendment.
Violating Implied Consent
Penalties for refusing a breathalyzer under implied consent laws vary by state. In some states, refusing a breathalyzer can result in jail time.
In Pennsylvania, if it is your first offense, the officer can suspend your license for a year. If it is your second or third offense, your license can be suspended for 18 months. Upon your refusal, the officer should disclose the suspension that applies. Even if you refuse the breathalyzer test, you have the right to appeal your suspension.
So, if you’ve been pulled over because an officer suspects you are impaired, refusing a breathalyzer does not necessarily evade you of a DUI charge. You can still be convicted. In fact, under Pennsylvania’s implied consent laws, your refusal can be used as evidence against you in any proceeding charges. In theory, you could face penalties for violating implied consent laws as well as a DUI conviction.
Implied Consent Debate in Pennsylvania
The debate over implied consent laws was brought before the Supreme Court in June of 2016 in Birchfield v. North Dakota. The Supreme Court upheld that refusal of a warrantless breath tests could be criminalized because breath tests do not pose any significant Fourth Amendment violations since they do not greatly intrude privacy. However, a distinction was made between breath tests and blood tests. The Supreme Court stated that refusal of warrantless blood tests could not be criminalized because they are considered more invasive than breath tests since they are more physically intrusive and reveal much more about an individual than breath tests do.
This distinction was kept in mind when the Pennsylvania Supreme Court reversed Garrett Gaetano’s DUI conviction in June. Gaetano was arrested in Allegheny County after an officer pulled him over for what he suspected Gaetano was driving while intoxicated.
In the appeal, Gaetano’s attorney argued that the evidence of his blood test should have been suppressed. He argued Gaetano’s consent to the test was involuntary because the officer who arrested Gaetano said if he refused the blood test, his license would be suspended and he could face other penalties under PennDot. Since there was no record of what the other penalties would be, the court remanded Gaetano’s case for re-evaluation of his consent to the blood test.
Driving with a BAC of 0.08 or higher is illegal and will result in a DUI or DWI charge.
A breathalyzer measures the amount of alcohol exhaled by your lungs when you breathe into it.
If you refuse to submit to the breathalyzer test, you will have your driver’s license suspended for a period of time ranging between 12 and 18 months.
If certain guidelines for breathalyzers are not followed, then the test results will be invalid.
Pennsylvania DUI Laws
In Pennsylvania, driving with a blood alcohol content (BAC) of 0.08 or higher is illegal and will result in a charge of driving under the influence (DUI) or driving while intoxicated (DWI). When you drink an alcoholic beverage, the alcohol gets into the bloodstream, flows to the lungs and exits your body when you exhale.
A breathalyzer measures the amount of alcohol exhaled by your lungs when you breathe into it. It is registered by the machine, which calculates your BAC. If it calculates it at 0.08, this will be used in court as evidence that you were driving under the influence.
Many people think that if they are stopped by law enforcement for suspicion of DUI/DWI, it will help them to refuse a breathalyzer test so there will not be evidence of their BAC. This is not true. If you have been arrested for drunk driving, there are penalties imposed for refusing to submit to the test even if the DUI/DWI charges are later dropped or you are acquitted.
Consequences for Refusing a Breathalyzer Test
According to Pennsylvania law, “Any person who drives, operates or is in actual physical control of the movement of a vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests…” in order to determine the blood alcohol content (BAC). The consent only comes into play if you are actually arrested and then requested to take the breath test.
If you refuse to submit to the breathalyzer test, you will have your driver’s license suspended for a period of time ranging between 12 and 18 months, depending on whether or not the driver’s license has previously been suspended under this code section. Even if you are not charged with a DUI, or are charged and acquitted, the refusal is a separate offense and your driver’s license will still be suspended.
Law enforcement also has other ways of proving your BAC was over 0.08. They can testify that your eyes were red, you were driving erratically, your speech was slurred and present other evidence of this nature. This testimony at trial may be enough to secure a conviction even without a BAC test.
Plus, it is not a slam dunk that you will be convicted of DUI even if the results show your BAC to be 0.08 or above. There are challenges that can be made that may show the results to be invalid.
Challenges to the Validity of Breathalyzer Test Results
Certain guidelines must be legally followed for the administration of a Breathalyzer test. If these guidelines were not followed, then the test results will be invalid. Challenges that may be made include:
You were not observed by a law enforcement officer for 20 minutes prior to the administration of the test.
The administrator of the test was not properly certified.
The machine was not properly calibrated.
There were not two consecutive tests conducted.
The test was not properly administered.
Even if none of these challenges are successful and the results are not invalidated, there are conditions that may result in a false positive.
Pennsylvania’s Implied Consent Laws
Thanks to implied consent laws, refusing a breathalyzer test can still result in penalties. Implied consent laws state that when you apply for a driver’s license, you submit your consent to sobriety tests. These laws are based on the rationale that driving is a privilege, not a right.
These laws are highly contested for a couple of reasons. Many question whether or not they actually keep the roads safer. Additionally, many see them as a violation of the fourth and fifth amendment.
Violating Implied Consent
Penalties for refusing a breathalyzer under implied consent laws vary by state. In some states, refusing a breathalyzer can result in jail time.
If you’ve been pulled over because an officer suspects you are impaired, refusing a breathalyzer does not necessarily evade you of a DUI charge. You can still be convicted. In fact, under Pennsylvania’s implied consent laws, your refusal can be used as evidence against you in any proceeding charges. In theory, you could face penalties for violating implied consent laws as well as a DUI conviction.
Implied Consent Debate in Pennsylvania
The debate over implied consent laws was brought before the Supreme Court in June of 2016 in Birchfield v. North Dakota. The Supreme Court upheld that refusal of a warrantless breath tests could be criminalized because breath tests do not pose any significant Fourth Amendment violations since they do not greatly intrude privacy. However, a distinction was made between breath tests and blood tests. The Supreme Court stated that refusal of warrantless blood tests could not be criminalized because they are considered more invasive than breath tests since they are more physically intrusive and reveal much more about an individual than breath tests do.
This distinction was kept in mind when the Pennsylvania Supreme Court reversed Garrett Gaetano’s DUI conviction in June. Gaetano was arrested in Allegheny County after an officer pulled him over for what he suspected Gaetano was driving while intoxicated.
In the appeal, Gaetano’s attorney argued that the evidence of his blood test should have been suppressed. He argued Gaetano’s consent to the test was involuntary because the officer who arrested Gaetano said if he refused the blood test, his license would be suspended and he could face other penalties under PennDot. Since there was no record of what the other penalties would be, the court remanded Gaetano’s case for re-evaluation of his consent to the blood test.
Breathalyzer Tests and False Positives
During the 20 minutes of observation prior to the administration of the test, if you ate a breath mint, ingested any alcohol, vomited or smoked, the test will not be valid. Other medical conditions that may result in a false positive include:
Experiencing a hypoglycemic episode, such as diabetics or those with kidney or liver disease.
Having ingested cough medicine containing alcohol.
Using numbing spray or gel containing alcohol as medication for a toothache.
Being on a high-protein, low-carbohydrate diet.
Using a hand sanitizer that contains alcohol.
Get Legal Help to Fight Your DUI/DWI Charge
A conviction for drunk driving has significant consequences. It can affect your future ability to get a job and, if you are a divorced or divorcing parent, it can cause you problems with child custody and visitation. If you have a prior DUI conviction, or anyone was injured as a result of your DUI, the penalties will be even greater.
At DRK Attorneys, all our attorneys are former prosecutors. We know how the other side thinks and acts. This gives us a unique edge in defending you. Contact us as soon as possible for a free consultation.
After a night out drinking, you might consider “sleeping it off” in your vehicle — rather than driving — to be a prudent strategy. In Pennsylvania, however, you can be arrested for driving under the influence even if your car is not moving.
State law prohibits individuals from driving, operating or being “in actual physical control of the movement” of a vehicle after drinking enough alcohol to make them incapable of safe driving. If you are sleeping in your vehicle after drinking alcohol, you may be charged with driving under the influence. As noted by the First Judicial District of Pennsylvania, Philadelphia County, whether you are charged and convicted of DUI may depend on a number of factors, including:
Your position in the vehicle.
Whether the key is in the ignition.
Whether the vehicle is running.
Whether the headlights are on.
Where the vehicle is parked.
Current temperature and weather conditions.
The presence of evidence indicating that you drove the vehicle while under the influence.
Pennsylvania courts have noted that specific circumstances heavily influence whether an intoxicated individual sleeping in a vehicle is guilty of DUI. In one case, the state Supreme Court court ruled — and overturned lower court rulings to the contrary — that the defendant was not guilty of DUI because when arrested, he was sleeping in a reclined position in the passenger seat of his vehicle, parked on the side of a road and with the lights, ignition, and engine off. In other cases, the court ruled that defendants were in control of their vehicles — for example, when a defendant was found slumped across the steering wheel of his truck, with the brake lights on and the engine running.
What Are ‘Reasonable Grounds?’
Whether an intoxicated individual in a parked car can be charged and found guilty of DUI depends largely on a test known as “reasonable grounds” — namely, whether an arresting officer has good reason for believing that a defendant is in physical control of a vehicle based on the defendant’s position within the vehicle and other circumstances.
Pennsylvania courts have found that the reasonable grounds test was satisfied when an officer found an individual slumped over in the driver’s seat with the engine running, even though the car was legally parked in a parking lot. In general, courts have ruled that a driver’s presence in the driver’s seat with the engine running satisfies the “reasonable grounds” test.
However, the engine running is not always sufficient grounds for a DUI charge, Pennsylvania courts have ruled. In one case, a defendant was found sleeping in a reclined position in the driver’s seat with the engine running and with the car parked near a bar. In that case, weather conditions were cold and snowy, and the court ruled that the arresting officer did not have reasonable grounds to believe that the defendant was either operating or was in “actual physical control” of the vehicle. The lower court and an appellate court found the defendant’s testimony — that bar patrons often parked in that area, that the engine was running because of the bad weather, and that the defendant was simply “sleeping it off” after a night at the bar — to be credible.
A ‘Case-by-Case Basis’
Pennsylvania courts have noted that the “reasonable grounds” standard is not extremely demanding, and the court determines whether the standard is met on a case-by-case basis. Reasonable grounds are found when another police officer observing the situation at the time would have determined that a motorist who was under the influence of alcohol was either operating or was in control of a vehicle.
State courts consider the “reasonableness” of an officer’s decision to arrest a defendant based on the complete circumstances, including whether the individual had driven at some point before the officer arrived.
If You Are Charged with DUI, Contact Experienced Attorneys
After a night of drinking, you absolutely should not drive. The best course of action is to designate a sober driver or take a cab home. If you do choose to “sleep it off” in your vehicle, move to the passenger’s seat and keep the ignition and lights off unless they are necessary for safety. If, in spite of precautions, you are charged with DUI for sleeping in your vehicle, contact the experienced attorneys at the Office of DeLuca, Ricciuti & Konieczka for a free consultation to learn more about your legal options.