Stopped for DUI? – Take the test says Supreme Court

Have you been stopped for DUI? Motorists arrested for drunken driving don’t have the right to pick what type of blood-alcohol test they will submit to under the state’s implied-consent law, the Pennsylvania Supreme Court ruled on December 29, 2015. (Nardone v. Pa. Dep’t of Transp., 2015 BL 429928, Pa., No. 141 MAP 2014, 12/29/15). In an opinion by Justice Correale F. Stevens, the court said that the choice of what chemical test will be administered belongs to the police, not the suspected drunken driver.

Although the implied consent law, 75 Pa. Cons. Stat. § 1547, states that all motorists “are deemed to have given consent to one or more chemical tests of breath, blood or urine,” that language doesn’t mean police must offer a “menu of choices,” the court said. “By implicitly consenting to any and all chemical tests in Section 1547(a), a motorist arrested for DUI is subject to any and all tests, and he effectively relinquishes any right to choose his preferred test over an officer’s.” Ruling otherwise would render the implied-consent law “meaningless,” the court said.

Police arrested Attorney John Nardone of Kingston, PA for “DUI” and transported him to a nearby hospital for chemical testing. After reading a PennDOT Form DL-26 to inform Nardone of the Implied Consent Law and alert him to the consequences of refusing to submit to chemical testing police requested that he submit to a chemical test of his blood. Nardone replied by showing police what he considered to be an inexplicably large coagulation of blood in his arm resulting from a relatively minor bump sustained earlier in the day, and he expressed his concern that his body may react in a similar way to a needle. He, therefore, asked police if he could, instead, submit to urinalysis, a breathalyzer or both. After brief discussion, police responded that the attorney’s request for an alternative test constituted a refusal because, they explained, they held exclusive discretion to select the test. Nardone disputed that he was refusing chemical testing and reiterated that he was willing to take either or both of the other tests. Nevertheless, police asked Nardone to sign the DL-26 form in acknowledgement of his refusal to take the blood test. He continued to disagree in vain with their assessment until he eventually signed the form and added the notation that police refused his offer to submit to a breathalyzer and/or urine test. At no time during this discussion did Nardone indicate he would consent to the official request for a blood test. The Department of Transportation’s Bureau of Driver Licensing (“DOT”) then suspended Appellant’s operating privilege for one year pursuant to the requirements of the vehicle code [75 Pa.C.S. §1547(b)(1)(i)].

Nardone appealed his license suspension to the Court of Common Pleas of Luzerne County. That court agreed with him and reversed the suspension. Specifically, the trial court determined that his failure to submit to the test requested by police did not constitute a refusal to submit to chemical testing under Section 1547(b)(1) because he had otherwise agreed to take a reasonably practicable, different test pursuant to Section 1547(i). On appeal the Commonwealth Court reversed. Conflicting decisions from the Superior Court prompted the Supreme Court to take the case.

Stopped for DUI in Centre County

In Centre County most police departments use blood testing at the local hospital. In surrounding counties some use blood tests, some breath tests. This case makes it clear that the choice of what type of test to offer the accused is up to the police. Refusing the test they offer almost certainly results in the loss of your driver’s license for one year, even if you are found not guilty of the DUI.

My advice to clients is to take the test the police offer you, unless you have been involved in an accident that resulted in a fatality. If you have concerns about the type of test the police offer you can request an additional different test (at your own expense).

Drinking and driving is a serious problem. The consequences of a conviction are severe: mandatory jail; huge fines; increased auto insurance (if you can get it at all); mandatory classes; mandatory alcohol abstinence while on probation; loss of driving privileges; and, restricted international travel. Students face campus discipline and some employers also take action against employees charged with crimes. If you are a licensed professional (doctor, lawyer, nurse, teacher, etc.), you may also have to answer to your licensing board. Don’t go thru the ordeal of being charged with DUI alone. The experience lawyers at the Mazza Law Group, P.C. can help. If you or a loved one is accused of DUI, don’t wait, call today.

Stopped for DUI? – Take the test says Supreme Court was last modified: January 13th, 2016 by Steven Trialonas