Chemical Testing of Pennsylvania Drivers Suspected of Driving Impaired

If a motorist is stopped by police who believe the driver is impaired, the officer may request the motorist to submit to chemical testing which will detect alcohol and various drugs. Ordinarily these tests are performed in a medical facility – often an emergency room.

In some jurisdictions, the motorist may be transported to a law enforcement agency to undergo a breathalyzer test, conducted on an approved and calibrated machine that will detect alcohol in the motorist’s breath.

In Pennsylvania, when a driver refuses this testing, the refusal results in an additional, automatic one-year license suspension. This suspension results from what is termed “implied consent.”

This means that by virtue of being given permission to drive in the Commonwealth, all drivers in Pennsylvania are assumed to consent to chemical testing if an officer has reasonable grounds to believe that the driver is under the influence of alcohol and/or drugs.

This suspension is separate from any license suspension that accompanies a DUI conviction. While a criminal defense attorney can try to overturn a license suspension, because of the mandatory nature of the law, they are often not successful, a fact a driver should consider when making the decision whether to undergo requested chemical testing.

On the other hand, if you do participate in testing and it shows that you have alcohol or drugs in your system, the prosecution now has damning evidence of your guilt of driving impaired, and a conviction could carry with it significant penalties.

Note that even if you do refuse chemical testing, the prosecution may have sufficient evidence to convict you of general impairment, which does not require proof of a particular blood alcohol concentration.

Maybe the driver did not pass field sobriety tests, or was observed driving in an erratic manner, or the officer observed the smell of alcohol on the motorist or saw other signs of intoxication. These types of evidence could be sufficient to convict a motorist of drunk driving even without the results of chemical testing.

The officer must warn a driver that his or her license will be suspended upon a refusal to submit to chemical testing. Acknowledging that the provisions of the implied consent law have the potential to create confusion for the motorist, Pennsylvania Supreme Court has ruled that police must give what are termed “O’Connell warnings.” (These warnings are derived from the case of Com., Dep’t of Transp., Bureau of Traffic Safety v. O’Connell, 555 A.2d 873 (Pa. 1989).)

These warnings advise a driver that in deciding whether or not to submit to chemical testing, he or she has no right to speak with counsel, or anyone else, before submitting to the testing.

Furthermore, the warnings let motorists know that exercising their right to remain silent will be considered a refusal which will result in the suspension of driving privileges. These O’Connell warnings are different from Miranda warnings that are popularized on tv dramas.

The police have no obligation to read Miranda warnings when requesting that a driver to submit to chemical testing and advising the motorist of the consequences of a refusal.

An experienced criminal defense attorney has a number of strategies in challenging the results of chemical testing. Was there reasonable suspicion to pull the driver over? Was the driver properly warned by the police? Did the driver give knowing and voluntary consent to the testing? Was the test conducted properly?

While there are a number of avenues of potential relief, the penalties – possible imprisonment, a fine, and license suspension – are stiff and having a skilled attorney at your side is the first step in protecting your rights in a DUI prosecution.

On August 25, 2017, a new law came into effect in Pennsylvania relating to Ignition Interlock Limited Licenses, expanding the number of drivers who can benefit from this device, keeping them on the road despite a suspended driver’s license.

What is an Ignition Interlock Limited License?

This is a special license that allows certain drivers, who have had their driver’s licenses suspended, to operate vehicles equipped with an Ignition Interlock System, which prevents the vehicle from starting if it detects alcohol on the driver’s breath. While DUI law is based on a minimum of .08% blood alcohol, these devices detect much lower levels of alcohol — .025 blood alcohol concentration.

What is an Ignition Interlock System?

This type of device is installed in the driver’s vehicle which will not start until the driver blows a breath sample into the equipment which then detects if there is any alcohol present in the sample. If alcohol is detected, the vehicle will not start. These devices do not detect drugs in the driver’s breath. While driving, the device will periodically beep, requiring the driver to again blow into the device to ensure that he or she is not drinking while driving.

How much does the device cost?

Installation of the device is approximately $100, with another $100 to remove it, and between $60 and $90 a month to maintain the equipment. Thus, spending several months with this device will be a costly investment. In some counties, you can choose any approved commercial provider of these devices, although in some counties – such as Allegheny – are limited to one provider. LINK: https://www.smartstartinc.com/locations/pennsylvania-pittsburgh-5300-perry-hwy-15229/

How do I apply for an ignition interlock limited license?

You must file a petition with PennDOT, by certified mail, on the form available here: http://www.dot.state.pa.us/Public/DVSPubsForms/BDL/BDL%20Form/DL-3731.pdf

The applicant must provide:

• · Proof that an approved ignition interlock system has been installed in the motor vehicle(s) that the applicant wishes to operate.
• Proof of financial responsibility covering each vehicle the applicant requests to be permitted to operate.
• A surrender of the applicant’s driver’s license.
• Payment of all fines and costs unless the applicant is currently on a payment plan.
• Payment of a nonrefundable fee of $65.
• The name of the company which will install your device.

You do not have to obtain devices for vehicles you own but will not be driving. If you are qualified, PennDOT will issue an ignition interlock limited license within 20 days of receipt of the petition if all requirements are met.

Am I eligible?

You are eligible if:

• You have had your license suspended for refusal to submit to chemical testing, after having been arrested for impaired driving, and you served six months of your 12-month suspension or nine months of your 18-month suspension; or
• You have had your license suspended for impaired driving under section 3802 and you have (1) not had a prior impaired driving offense and (2) have served six months of your 12-month suspension imposed or served nine months of your 18-month suspension; or
• You have had your license suspended in connection with your participation in an Accelerated Rehabilitative Disposition program; and
• You have sent PennDOT proof that your vehicle has been equipped with an approved ignition interlock system.

You may not receive an ignition interlock limited license if:

• You are not licensed to drive by the Commonwealth or any other state;
• You are required to take a driver’s examination and failed to take and pass the examination;
• Your operating privileges have been recalled or canceled;
• You have an unsatisfied judgment as the result of a motor vehicle operation, until the judgment has been satisfied or an installment agreement has been entered into to satisfy the judgment, and your financial responsibility has been established;
• You are seeking to operate a commercial motor vehicle;
• You are disqualified under the Commercial Motor Vehicle Safety Act of 1986 or the Motor Carrier Safety Improvement Act of 1999; or
• Your operating privilege have been suspended for conviction or adjudication of delinquency relating to homicide by vehicle or homicide by vehicle while driving under influence.

Is there a waiting period?

For some, yes. If this is your first DUI offense, your eligibility for this special license is are immediate, but if you are serving a 12-month suspension, you must wait six months to be eligible, and if you are serving an 18-month suspension, you must wait 9 months. Note that it will take some time for PennDOT to review your application. The law requires the Department to issue an ignition interlock limited license, to a qualified applicant, within 20 days of receipt of the petition, as long as all other requirements for issuance are met. So, you will have to wait about 20 days for this license. The mere fact that you have applied does not mean that you can start driving again—wait to have your newly-issued license in your possession.

Are there restrictions on using this type of license?

An individual who has been issued an ignition interlock limited license may operate only motor vehicles equipped with functioning ignition interlock systems. Under the law, you may drive a vehicle for work that does not have an ignition interlock system if two prerequisites are met:

1. The employer has been notified that the employee is restricted; ?and
2. You have on you at all times while driving proof that your employer has been notified.

However, this exception does not apply if you have access to the employer-owned vehicle for your personal use, or if you own or partially own the company that owns the vehicle, or if the vehicle in question is a school bus, a school vehicle or a vehicle designed to transport more than 15 passengers.

Caution: You must fill out PENNDOT DL-3805 form (Ignition Interlock Employment Exemption Affidavit) found here: http://www.dot.state.pa.us/Public/DVSPubsForms/BDL/BDL%20Form/DL-3805.pdf

What if I was denied an ignition interlock limited license?

You may petition PennDOT for a hearing, for which you may have to pay some fee. While these hearings are less formal than a trial in a court room, it behooves you to be represented by experienced counsel.

This is a relatively new law and it is critical that you hire an attorney well-versed in DUI law, even if you believe your eligibility for an ignition interlock limited license is clear-cut. An attorney experienced in the ever-changing field of DUI law will fight to keep you on the road.