Archive for July, 2015

Spotlight Issue: What happens if I refuse the breath/blood test?

Friday, July 31st, 2015

All drivers in Pennsylvania are said to have given “implied consent” to a blood, alcohol or urine screening to test for the presence of alcohol or a controlled substance. Therefore, there are penalties for refusing to submit to chemical testing when lawfully requested by a police officer.

Section 1547 of the PA Vehicle Code governs chemical testing of a driver. The law requires that, before requesting chemical testing, a police must have reasonable grounds to believe that the driver is under the influence of alcohol or a controlled substance. The police officer must then read the refusal warning to the driver. This warning is contained in the “DL-26” form and is as follows:

1. Please be advised that you are under arrest for driving under the influence of alcohol or controlled substance in violation of Section 3802 of the Vehicle Code.

2. I am requesting that you submit to a chemical test of __________ (blood, breath or urine. Officer chooses the chemical test).

3. It is my duty as a police officer to inform you that if you refuse to submit to the chemical test, your operating privilege will be suspended for at least one year. In addition, if your refuse to submit to the chemical test, and you are convicted of, plead to, or adjudicated delinquent with respect to violating Section 3802(a) of the Vehicle Code, because of your refusal, you will be submit to the more severe penalties set forth in Section 3804(c) of the Vehicle Code, which include a minimum of 72 hours in jail and a minimum fine of $1,000.00.

4. It is also my duty as a police officer to inform you that you have no right to speak with an attorney or anyone else before deciding whether to submit to testing and any request to speak with an attorney or anyone else after being provided these warnings or remaining silent when asked to submit to chemical testing will constitute a refusal, resulting in the suspension of your operating privilege and other enhanced criminal sanctions if you are convicted of violating Section 3802(a) of the Vehicle Code.

The driver is then asked to sign the DL-26 form indicating that he has been advised of the refusal warnings. As stated in the warnings, a driver does not have the right to consult with an attorney before making a decision whether or not to submit to chemical testing. Courts have decided that consent to submit to chemical testing must be immediate and absolute. Anything else can be considered a refusal. Further, a driver’s conduct can be considered a refusal if he, for example, is attempting to delay the testing or provides insufficient breath for a breath test.water obstacle

What is the penalty for refusing to submit to a lawful request for chemical testing? A refusal results in an automatic 1 year license suspension. The suspension increases to 18 months if the driver’s privileges were previously suspended for refusal or the driver was previously convicted of a DUI. Please note, the suspension for refusal does not go away if the underlying charge is dismissed. As an example, if a driver is arrested for a DUI and refuses to submit to a blood test, his license will be suspended for refusal even if he is later found not guilty of the DUI.

What can you do if your license has been suspended for refusing to submit to chemical testing? Call our office right away at 610-372-5128. You have 30 days from the date that your suspension notice is mailed to request an appeal of your license suspension.

Refusing a request for chemical testing can have a lasting impact on your life. While you
can’t consult with us before you make a decision about whether or not to submit to the testing, we can help you deal with the consequences. Contact our Berks County DUI attorneys today at 610-372-5128 or email us at info@enmlaw.com

Spotlight Issue: DUI and prescribed medication

Tuesday, July 14th, 2015

Can you be charged with a controlled substance DUI even if you are only taking medication as prescribed by a doctor? The answer is “yes.” Pennsylvania DUI statute §3802(d)(2) makes it a crime for anyone to drive under the influence of a drug or combination of drugs to a degree that impairs that person’s ability to safely operate a motor vehicle. Noticeably, that section does not make an exception for prescription drugs that are taken as ordered by doctor. Further, §3802(d)(3) makes it a crime for anyone to drive under the combined influence of alcohol and drugs to a degree that impairs the driver’s ability to safely operate a motor vehicle. This section does not require a certain level of alcohol in the blood. Instead, any combined amount of alcohol and drugs that impairs the driver’s ability to safely operate a vehicle is prohibited. This includes prescription drugs that are taken as prescribed. While a prescribed amount of a drug taken alone may not impair the driver’s ability to safely operate a vehicle, even a small amount of alcohol mixed with that drug may cause impairment.

The controlled substance DUI sections are different from the alcohol sections in that there are not different penalties depending on the amount of the drug in the driver’s blood. Any amount of any prescription medication, if it causes a driver to be impaired, results in the highest tier of DUI penalties. A first offense is punishable by a mandatory minimum sentence of 72 hours of incarceration. A second offense is punishable by a mandatory minimum sentence of 90 days of incarceration. A third or subsequent offense is punishable with a mandatory minimum sentence of 1 year of incarceration.

Are there ways to fight a prescription drug DUI? Yes! The Commonwealth has to prove beyond a reasonable doubt that the driver was impaired while driving AND that the impairment was caused by the prescription drug. Impairment while taking a prescription drug is not assumed as it is when a driver has a BAC over .08. The traditional DUI defenses are also available in prescription drug DUI cases. Our Berks County DUI attorneys will examine the facts of your case to determine the best defense in your case. If you decide to take your case to trial, our attorneys will fight to obtain a not guilty verdict. If you decide not to go to trial, our DUI attorneys will help you get the best deal possible. A DUI can have serious consequences and you need to have a knowledgeable Berks County DUI attorney on your side. Call us at 610-372-5128 or email us at info@enmlaw.com.