Your Consent Isn’t Necessary For a Blood or Breath Test in PA

You do not have to give outright consent to take a blood test or breath test at the time you are pulled over, at a hospital, or police station for a PA DUI-DAI. Many people think that if a Pennsylvania police officer wants to invade your body, by insertion of a needle to take your blood, that you must give full and clear verbal or written consent. This is not the case in PA, even if you are afraid of needles. Furthermore, you are not allowed to choose between the blood or breath test either.

PA has an implied consent DUI-DAI law. This means that when you applied for your PA driver’s license, you agreed to give consent for Pennsylvania police to test you for alcohol and/or drugs in your system. This includes the taking of your blood by needle.

Usually a Bucks County, Pennsylvania police officer will take the DUI-DAI suspect from the scene of the traffic stop to a local Bucks County hospital. Bucks County is one of several Pennsylvania counties that do not use the old Breathalyzer machine.

Bucks County DUI-DAI procedure is to take the suspect for a blood test. There are many reasons Bucks County police use this practice. Unfortunately, there are usually less defenses to attack the PA DUI-DAI blood test, then there are defenses to attack the old Breathalyzer machine test—Advantage to the prosecution.

The Pennsylvania police are required by law to administer the blood or breath test within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle. There are exceptions to this rule.

§3802 (g) of the PA DUI-DAI law states that if the PA police officer shows good cause explaining why the chemical test sample could not be obtained within two hours and where it is established that the individual did not imbibe any alcohol or utilize a controlled substance between the time the individual was arrested and the time the sample was obtained, then the blood or breath test could occur after the two hour point.

I believe that it would be a rare occasion for a Pennsylvania judge to outright dismiss a PA DUI-DAI case because the blood or breath test was administered more than 2 hours after the operation of the vehicle. I believe the police will find some kind of excuse for a late test.

Is this law fair? Couldn’t you have a higher blood alcohol content (BAC) two or more hours after you drove then you did at the time you drove? You could be found guilty under this flawed PA DUI-DAI law if you were sober while you drove, but two hours later your BAC was higher than .08.

You have also the choice to refuse the PA DUI-DAI blood or breath test. If you do refuse, you will be charge with Refusal to take the blood or breath test, which usually carries greater penalties.

The author of this Law Blog, Bucks County PA & Mercer County, NJ criminal attorney, Michael L. Saile, Jr., Esq. of Cordisco & Saile LLC, Attorneys-at-Law practices both New Jersey and Pennsylvania criminal, traffic violations, and DUI/DWI/DAI law. Check out our website for DUI penalties. We handle all NJ Municipal Court cases including DUI in the following NJ Municipal Courts: Hopewell Township, Ewing Township, Trenton, Lawrence Township, Hamilton, Pennington, and other Mercer County, Burlington County, and Camden County, NJ courts. We also handle lower bucks county DUI and traffic violation cases in the following towns: Bensalem, Southampton, Richboro, Newtown, Levittown, Langhorne, Doylestown, Warminster, Trevose, Feasterville, Warrington, Bristol, Fallsington, Yardley, New Hope, Holland, Washington Crossing, PA, and other Bucks County courts. We handle DUI cases in Philadelphia, Bucks, Chester, Delaware, and Montgomery County, PA. We are located just outside of Philadelphia in lower Bucks County.