Can I Choose Which Chemical Test I Take?

Under Pennsylvania law, you are required to submit to chemical testing if you are suspected of DUI (P.A.C.S. § 1547). Failing to do so can result in a license suspension, among other penalties. Further, your failure to submit to a test may be used as evidence against you in a subsequent criminal trial.

Do You Have a Choice?

While many people know that they have to take a chemical test, they may wonder if they can elect to take one over the other. For instance, they may have heard that a breathalyzer test is prone to inaccuracies, so they may prefer a blood test.

Unfortunately, the Pennsylvania Supreme Court ruled in 2015 that you have no right to request a certain type of chemical test when asked by a police officer to take another test. In fact, any response that is not unequivocally consenting or complying with the test can be deemed a refusal.

We know that this law may be frustrating, but it does not mean that you don’t have rights when facing DUI charges. Speak to an experienced DUI lawyer in Pennsylvania to learn more about those rights and what possible defenses you could have against your charges. 

Call the Law Offices of Steven E. Kellis today at (215) 977-4183 or contact us online to schedule a free, no-obligation consultation today.

Why Can’t I Choose What Chemical Test I Take When I’m Under Suspicion of DUI?

Your rights – or, more accurately, your lack thereof – involving chemical BAC tests are spelled out in P.A.C.S. § 1547, aka Pennsylvania’s “implied consent law.” They state that refusing to take a chemical test is a separate crime from a DUI that will automatically incur certain penalties. In effect, you can have your DUI charges dropped entirely but still have your license suspended because of your refusal.

P.A.C.S. § 6504 (a) further describes that, “if a law enforcement officer has reasonable grounds to believe an individual has violated [Pennsylvania’s DUI law], the officer may request that the individual submit to a preliminary test of blood, breath or urine.”

Additionally, according to § 6504 (b) once someone is arrested for a suspected DUI they, “shall submit to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance.”

Simply put, testing occurs at the officer’s discretion. You have a number of rights in this situation, but most pertain to your right to have your chemical test administered by a “qualified individual” using approved devices that have been properly calibrated. 

For blood and urine tests, § 6504 (d) (2) states that they, “must be performed by a clinical laboratory licensed and approved by the Department of Health for this purpose using procedures and equipment prescribed by the Department of Health or by a Pennsylvania State Police criminal laboratory.”

How the PA Supreme Court Affects Your Right to Request a Test

One interesting part about Pennsylvania’s law regarding DUI chemical tests is that an individual may request their own test if they are involved in an accident or placed under arrest for suspected DUI (§ 6504 (i) ). 

Further, they are allowed to have their own test performed by a personal physician, and they can admit the results in court (§ 6504 (h) ).

Because of these rights – and because many individuals know that certain tests are more accurate than others – some DUI suspects believe they have the right to refuse a certain test so long as they submitted to another.

This right was tested in the Pennsylvania Supreme Court case Nardone v. Dept. of Transportation, 141 MAP 2014 (December 29, 2015). During that case, the Pennsylvania Supreme Court ruled that although someone can elect to take a certain test, they cannot refuse another test in the process of doing so. 

Additionally, § 6504 (i) only describes the right to request a test, which the relevant authority can decline by arguing that it is not “reasonably practicable” to do so.

What’s most surprising about the ruling is that the Supreme Court gave law enforcement officers and prosecutors a lot of leeway to interpret certain questions or actions as a concrete refusal to comply with tests. Only responses that unequivocally indicated consent would not count as a violation of P.A.C.S. §1547.  

Essentially, courts are looking for evidence of “an attempt to debate, maneuver or negotiate the question of submission to the test” when weighing whether someone violated § 1547.

So, be careful when dealing with police officers who are “asking” you to submit to a chemical test. Any questions other than, “where do I blow?” or anything that similarly shows your willingness to comply could be used as a reason to allege that you refused.

Fight for Your Rights with an Experienced Pennsylvania DUI Lawyer

Many law enforcement officers are misinformed when it comes to what you are and are not allowed to do while under suspicion or arrest for a DUI. But one thing that is clear is that if you refuse to submit to a test “unequivocally,” then you may be in violation of PA’s implied consent law.

Every single case is different, so you should always at least examine your legal options for contesting your DUI and related charges. Discuss those options during a free, no-obligation consultation with a proven Pennsylvania DUI attorney when you call (215) 977-4183 or contact us online to schedule an appointment today.