A Huge Breathalyzer/Refusal Decision

Many Pennsylvania Supreme Court decisions do not seem to have an immediate impact on people.

This one does.

Especially if you drink alcohol and then get into your car and drive.

For DUI cases and Breathalyzer refusal matters, this is a landmark decision.


Because in Pennsylvania, this case now takes away a drivers right to try to get around taking a certain type of chemical test related to a DUI case.

In plain English it means you do not have a right to refuse to have your blood drawn in a DUI case by saying that you will submit to a breathalyzer instead. Or vice versa.

Check out the context of the decision as reported by the Legal Intelligencer:

Pennsylvania’s Implied Consent Law does not provide a statutory right to alternative chemical testing during an arrest for ­driving under the influence, and a request for alternative testing may be seen as a refusal to submit to a test, the state Supreme Court has ruled in considering the driver’s license suspension of a Luzerne County lawyer.
A four-justice court affirmed an order of the Commonwealth Court on Dec. 29, ruling against John D. Nardone, who had requested alternative testing when he was arrested for DUI and asked to submit to a blood test. The majority opinion noted the Commonwealth Court has consistently required that a motorist assent unequivocally to an official request for the prescribed chemical test, but the Superior Court has said a motorist is compliant with the law if he asks to take a different, reasonably practicable, prescribed test.
“We have acknowledged that the mischief to be remedied is the threat of scofflaw, intoxicated motorists and that an important statutory object to be attained is their removal from our roadways,”

 Pittsburgh wrongful death, medical malpractice, car accident and criminal defense attorney Bernie Tully believes the key language of the decision is you must agree unequivocably to the officers request.

If not, legally you have refused the test.

And a chemical test refusal in itself carries with it a significant loss of your driving privileges in Pennsylvania.

There used to be a common defense in these type of cases.

It was called the fear of needles defense.

What the defendant would tell the Court is that they would have agreed to a breathalyzer test but they had a real fear of needles because of AIDS and other things.

If only the officer had allowed him to take the Breathalyzer test….

Not the fact they knew they were drunk and feared their blood level would be very high for intoxication.

Sometimes the defendant would get their doctor to testify to the patients fear thus providing a defense to the claim.

Apparently not anymore except in very limited circumstances.

What do you think of this decision? Do you agree with it?

Thanks for reading.

Bernie the attorney.