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Pennsylvania Drivers Suspected of DUI Required to Submit Two Breath Samples to Avoid License Suspension

breath testMost people are aware that if you are stopped due to suspicion of a DUI, the police can request that you submit to a breath test. It is not common knowledge, however, that under Pennsylvania DUI law, you are required to provide two breath samples, and the refusal to provide a second sample can result in suspension of your license. In Flaherty v. Commonwealththe Commonwealth Court of Pennsylvania held that police are not required to provide licensees with a form stating they are required to submit to a second test, and that verbally advising drivers of the requirement was sufficient.

Facts of the Case

The suspect in Flaherty was involved in a single car accident. According to the police, when an officer approached the suspect’s vehicle he noticed an odor of alcohol coming from her breath. She stumbled while exiting her vehicle but was not slurring her speech. The officer requested that the suspect submit to a breath test and was advised if she did not submit to a breath test, her license would be suspended for one year. The suspect was then transported to a second location for the breath test, where she was read Form DL-26A, which again warned if she refused to submit to the breath test her license would be suspended for at least one year. The suspect was then verbally advised she would have to provide two breath samples. The suspect stated she would submit to the test, and was directed how to take the test.

Purportedly, the suspect provided the first sample, which indicated her blood alcohol content to be over three times the legal limit. After she provided the first sample, the suspect became combative. She attempted to provide a second sample but would not blow continuously as required. She was advised if she did not provide the second sample in a proper manner it would constitute a refusal. She refused to provide the second sample within the time required, and the breathalyzer machine shut down due to the lack of a sufficient sample. The suspect’s license was subsequently suspended for 18 months.

The suspect appealed the suspension to the Court of Common Pleas. At the hearing, the Common pleas court noted that while the suspect stated she did not refuse the breath tests and had attempted to submit the second sample, the second sample was invalid, which was legally the same as a refusal. The trial court then ruled Form DL-26A should state the suspect was required to take two tests, if she was obligated to provide two samples, and sustained the suspect’s appeal. The Commonwealth then appealed to the Commonwealth Court of Pennsylvania, arguing the trial court erred in excusing the suspect’s failure to provide a second sample due to the fact that she was not informed that the failure would result in the suspension of her license, and that the suspect was in fact verbally advised she was required to provide two samples.

Commonwealth Court of Pennsylvania Decision

On appeal, the court noted that the implied consent provision of the Pennsylvania Motor Vehicle Code states a person is deemed to consent to one or more chemical tests, and if a person does not consent to a blood or breath test his or her license can be suspended. Further, the court noted that while the Vehicle Code did not require the administration of two breath tests the Department of Transportation regulations required a minimum of two consecutive breath tests. Additionally, the regulations did not require the police to inform the suspect that she would have to submit to two breath tests. Rather, the police were only required to inform the suspect that her license would be suspended if she refused to submit to testing. As such, the court found that the Commonwealth met its burden of proof of showing the suspect was warned her license would be suspended if she refused to submit to testing and that she was notified she would have to submit to two tests. The suspect did not show that she did not unconsciously refuse the test or that she was physically unable to take the test. As such, the court reversed the Common Pleas order and reinstated the suspension of the suspect’s license.

Meet with an Experienced Pennsylvania DUI Attorney

If you were stopped due to a suspicion of DUI and refused to submit to a breath test you may face increased penalties. You should retain an experienced DUI defense attorney to formulate a strong defense against the charges you face. Zachary B. Cooper is a skilled criminal defense attorney who can assist you in the defense against your DUI charges. Contact him at (215) 542-0800 to schedule a consultation.

More Blog Posts:

Pennsylvania Superior Court Holds DUI Conviction Not Altered by Birchfield Pennsylvania DUI Lawyers Blog, October 5, 2017

Bicyclists Must Submit to Breath or Blood Testing under Pennsylvania’s Implied Consent Law, Commonwealth Court Holds Pennsylvania DUI Lawyers Blog, July 1, 2014

Pennsylvania Commonwealth Court Considers What Constitutes “Refusal” to Submit to Chemical Testing for DUI Pennsylvania DUI Lawyers Blog, March 29, 2014

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