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Pennsylvania Commonwealth Court Considers What Constitutes “Refusal” to Submit to Chemical Testing for DUI

By Marco C (Own work) [CC-BY-SA-3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia CommonsThe Commonwealth Court of Pennsylvania recently considered the appeal of a license suspension for refusal to submit to chemical testing. The defendant in Commonwealth v. Campbell denied that she refused testing, and the record shows that she consented to breath testing and submitted several samples. Rather, she argued that the police did not give her enough opportunity to comply with the testing requirement. The court reviewed the elements that the state must prove in order to prove refusal. It affirmed the trial court’s order, meaning that a driver who agrees to submit to chemical testing could still be charged with refusal.

Police arrested the defendant shortly before midnight on February 12, 2012. The arresting officer administered a portable breath test, which reportedly showed blood alcohol content (BAC) of .18 percent. He concluded that the defendant had been driving under the influence of alcohol, placed her under arrest, and took her to a sheriff’s office with a chemical testing facility.

At the sheriff’s office, a deputy sheriff reportedly read the Implied Consent Law warnings to the defendant “several times,” and the defendant stated that she understood the warnings and agreed to submit to chemical testing. The deputy testified in court that he used a “BAC Data Master” for breath testing. The deputy testified that the defendant failed to perform the test properly, despite his instructions. She allegedly only breathed into the mouthpiece for four to five seconds, which was not enough time to collect a sample. The deputy allowed her to try again, but claimed that the second sample was also insufficient. His supervisor prevented him from giving her a third try.

About a month after the arrest, the defendant received a notice of license suspension for refusal and filed a statutory appeal with the trial court. The defendant testified that she intended to cooperate with the testing and made a good faith effort. She claimed that she stopped blowing during the first attempt because she heard a beep and thought that meant for her to stop. The trial court ruled against her and affirmed the suspension.

In her appeal to the Commonwealth Court, the defendant claimed that the trial court erred in finding that she refused to submit to chemical testing, arguing that her conduct did not amount to refusal. The Commonwealth Court’s ruling in Warner v. Dep’t of Transp. held that if a driver does not offer “unqualified and unequivocal assent” to chemical testing, it could constitute refusal. In another case, In re Budd, the court held that courts may infer refusal from a defendant’s lack of effort, specifically including a failure to provide a usable breath sample.

Police have the burden, however, of providing a driver with a “meaningful opportunity” to comply with a request for testing, as the court held in Solomon v. Comm. Citing these three cases, the court affirmed the trial court’s order. It found that the deputy, by reading the informed consent statement and explaining the use of the testing device several times, met the state’s burden; however, it found that the defendant’s conduct did not constitute sufficient compliance or cooperation.

If you have been arrested or charged with DUI, you need the help of a qualified and skilled DUI lawyer to advise you of your rights and plan the best possible defense for you. Zachary B. Cooper, Attorney at Law, P.C. has dedicated 100% of his practice to DUI defense. We are available to help you 24/7. To schedule a free and confidential consultation to see how we can help you, please contact us online or at (215) 542-0800.

More Blog Posts:

Man Arrested, Charged with DUI Despite 0.00 Percent BAC, Pennsylvania DUI Lawyers Blog, March 14, 2014

2013 Was a Tumultuous Year for Court Decisions in DUI Cases Regarding the Accuracy of Breathalyzer Results, Pennsylvania DUI Lawyers Blog, February 12, 2014

Pennsylvania Driver Challenges Suspension of License for Refusal to Submit to Chemical Testing, Pennsylvania DUI Lawyers Blog, January 26, 2014

Photo credit: By Marco C (Own work) [CC-BY-SA-3.0], via Wikimedia Commons.