How Are You Penalized for Refusing a Blood, Breath or Urine Test?
After a DUI, are there penalties if you refuse the tests?
There are penalties. This is a big problem when people refuse the test. This is the biggest thing I caution people against, especially first-time offenders. In Pennsylvania, when you get a driver’s license you automatically consent to give a test of your blood, breath or urine if a police officer suspects you are under the influence.
The police officer has to read you certain rights before you say yes or no to the test. However, if you say no to the test there is an automatic one-year suspension for refusing. That is in addition to whatever you would get as far as suspension time for the DUI.
If it is a second offense refusal, then it is 18 months additional without your license. They really come down hard on you for not taking the tests. Again, the police officer has to read you certain rights, as far as you really have, to take the test.
If you do not take the test, you are looking at enhanced penalties as far as jail time and enhanced license suspension. If you do not take it, you are automatically deemed to be in the highest level of intoxication, the third tier.
What are the breakdowns for blood-alcohol level?
The first level is called the general impairment level. It is 0.08 to 0.099%. The second tier is high rate of alcohol, 0.10 to 0.159%. Then, the highest rate is 0.16%, drugs or a refusal of testing. That is considered the highest rate, and the penalties are more severe the higher the blood-alcohol level.
Based on level of intoxication, how severe is the penalty?
If it is a first offense, you are talking the difference between probation if you are in the lowest level to a three-day mandatory minimum if you are in the highest. If it is a second offense, the penalties go from five days if you are in the lowest level to 90 day minimum if you are in the highest level.
If it is a third offense, it is 10 days in jail lowest level to one year in jail if it is the highest level. The penalties go up exponentially, depending upon your level and prior record within the last 10 years. That is what they look at.
Are there laws in Pennsylvania that address people with an alcohol concentration of below 0.08?
Technically, if you are under a 0.08, you could still be charged although it is going to be very difficult for them to prove the case.
Let me say it in the alternative. If you are above a 0.08, you are presumed to be under the influence based upon the law and all the scientific knowledge we now have about drinking and driving. If you are below, it is called a rebuttable presumption that you are probably not intoxicated. However, the state can certainly try to prove otherwise.
A case I had right before I left the DA’s office is a good example. The law was 0.10 at that point, but I convicted somebody at a 0.09. This is mainly because he was driving like a complete idiot and almost got into accidents. He really was driving unsafely and recklessly. The jury convicted him even though he was under a 0.10.
If you are under, that is good. There is a good chance we could resolve the case. However, it does not necessarily mean it is automatically going to go away.
NO JAIL TIME
Commonwealth v. "H" (DUI case)
Client was charged with three separate DUI cases calling for mandatory minimum imprisonment of 90 days on each case. Client was advised to seek immediate intensive alcohol counseling. Client was sentenced to 1 year of house arrest after serving 3 days in the county prison.
Commonwealth v. "C" (Felony drug/Firearms case)
Client was charged with felony Delivery of drugs and illegal gun possession and was facing a mandatory 3-6 year prison sentence in the State prison system. Client was sentenced to one year of house arrest.
Commonwealth v. "S"
Client was charged with simple assault, domestic. After a hearing where evidence and testimony was presented, the entire case was dismissed by Judge Leonard Brown.
State of New Jersey v. "H"
Charges for young man charged with second degree aggravated assault were downgraded to third degree and he was accepted into the County Pretrial Intervention program with charges to be dismissed and record expunged after one year of misconduct free behavior.
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