At least once a week someone will call my office and run a certain scenario by me.  It will involve a DUI stop, an arrest, and the question “did I refuse the breathalyzer test”?  Of course, the answer always depends on a variety of factors, the most important of which would be when the request for the breath test was made by the police and which “breathalyzer” they were asking you to breath into.  Here’s an attempt to clear it up.

Refusing a Breathalyzer Test in PA

When a person is pulled over for suspicion of DUI, they are very often asked to submit to a battery of tests called “field sobriety tests”.  They are designed to let the the police officer observe someone and try to determine whether that person is drunk enough to arrest for DUI.  Field sobriety tests include the “walk and turn test”, “finger to nose test”, and the “horizontal nystagmus gaze test”.  The last one is where the cop puts the light in your eye and asks you to follow a pen with your eyeball.  Now – there is also another field sobriety test.  It does involve a device you breathe into and it is called the “alco-sensor” or “portable breath test device”.  This is a device the police officer asks you to breathe into so they may get an approximate reading of your blood alcohol level.   It is not mandatory that one takes it.  Its reading is almost never permitted into evidence at a DUI trial.  The device is merely another tool used to help the police form probable cause to arrest.  As such, in the eyes of the law, anyone is free to refuse to take it without legal repercussion.

This brings us to the other type pf breathalyzer.  This is the one they actually keep at the police station.  The one that is bigger.  Calibrated.  More accurate.  This is the one police ask a suspect to breathe into after they have been arrested.  Its purpose is to ascertain one’s blood alcohol level for purposes of prosecution.  This is the one you must submit to, for if you don’t, it will result in a PennDot license suspension for refusal, and that person’s driving privileges will be lost for at least 12 months, as well as resulting in additional penalties for the criminal charge of DUI itself.

As a Montgomery County DUI Lawyer, I see this breathalyzer confusion frequently in towns like Willow Grove PA, Collegeville PA, Norristown PA, and West Norriton PA, where they make extensive use of the portable breathalyzer.   So…..before you decline to give a breath sample if you ever find yourself in the middle of a DUI investigation, make sure you know which breathalyzer you are turning down – and the penalties for it.

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