Blood vs. Breath Test for DUIs in Pennsylvania

Is There a Difference Between Refusing a Blood Draw and Refusing a Breath Test?

In Pennsylvania, during a DUI stop, an officer may ask you to submit to a blood draw or a breath test if that officer has “reasonable grounds” to believe that you are intoxicated while driving. “Intoxication” can include by alcohol, a prescription drug, and/or a controlled substance. The amount and degree of items in your blood can affect a potential DUI penalty. Refusing a blood draw or a breath test is technically not illegal in Pennsylvania. However, refusing either could result in PennDOT (the government organization responsible for traffic and vehicle matters) suspending your driver’s license for a year… or longer! Operating a motor vehicle while a license is suspended can result in tremendous legal penalties and jail.

What happens if you refuse a test? There are differences between refusing a blood draw and refusing a breath test. First, a blood test refusal has been recognized as a privacy right that implicates the Constitution of the United States. In Birchfield v. North Dakota, the United States Supreme Court understood and realized that blood tests are an invasive tool that governments can use to obtain evidence. The Court recognized that blood is a part of bodily autonomy and it should therefore require a warrant or consent from the individual to access that valuable item.

In a breath test, you have no similar right to refuse. The Courts have reasoned that unlike a blood test, which is highly invasive, a breath test implicates no such privacy right. You therefore have no constitutional right to refuse a breath test. Because you have no constitutional right to refuse a breath test, the government can put additional penalties on you should you refuse a breath test.

If you never refused and were taken to the hospital, an officer can still get your blood through a search warrant and probable cause (assuming your blood was taken at the hospital). An officer can even request a hospital staff member to seize an individual’s blood pending a search warrant if there was an accident or they have “reasonable grounds” to believe the subject was driving while intoxicated. Many unassuming lawyers believe that an officer can request a nursing staff to withhold blood or take blood as a matter of course, but that is not correct.

Another avenue for “testing” after a refusal or no test at all is by requesting medical records. Defense attorneys and Defendants should be careful with this as many medical records and tests are made for treatment purposes only and are not official or scientifically accurate/competent tests which can be used in court. A careful examination of the medical records is therefore required. Many medical documents will explicitly state that the blood tests were done for diagnosis purposes only and are not to be relied on past that point. The case may get past the preliminary hearing but admissibility at trial is another matter.

You can refuse a blood or breath test in many ways. The first and most common in my experience is simply telling an officer no. In that case, the officer is required to read to you a notice which is known as a “DL-26” which is a form provided to the police by PennDot. Another avenue that Defendants have refused blood or breath tests is by being non-compliant during the testing process. This can include pretending to blow or repeatedly flexing the arm so that the examiner cannot get an accurate blood sample.

In Pennsylvania, refusing a blood or breath test will generally result in a mandatory year-long driver’s license suspension. However, if you refuse a blood test the Commonwealth/Police cannot levy additional penalties on you simply for refusing. Refusing a breath test can result in additional penalties, and a first offense DUI (general impairment + breath refusal) carries a mandatory minimum jail penalty of 72 hours in jail and a $1000 fine. This is current as of 2024.

Well, you might be wondering – why can PennDOT suspend my license if I refuse a test if it implicates constitutional rights? The government of Pennsylvania, and most other states, get around this my stating that driving a motor vehicle is a privilege and not a right. There are many rights enshrined in the Constitution (life, liberty, happiness, etc.) but driving is not one of them.

One last point about refusal is how it implicates a potential trial (either Jury or Bench Trial). At trial the prosecution can normally not reference a defendant’s refusal to speak to police or offer evidence that you refused to help the police. This is known as a 5th Amendment Right against self-incrimination. DUIs are different, and many lawyers don’t understand this. In Pennsylvania, as of 2024, Courts have deemed refusal to submit to testing as evidence of “consciousness of guilt.” Therefore, prosecutors can and will mention a refusal as evidence of guilt, even if the other evidence is lacking.

DUIs can be extremely tricky. Too often lawyers are lazy with the facts and circumstances and lead you to the wrong conclusion about a DUI and how to defend against it or mitigate the damage. Many defense lawyers think DUIs are easy and they don’t look for avenues for exoneration or possible defenses. Hiring a lawyer who knows the difference between a DUI breath refusal and a DUI blood refusal can save you an extreme amount of time, effort, and money.