Wednesday, March 12, 2014

3.12.2014 Should one consent to a BAC (blood alcohol content) test?

One of the most important decisions a person has to make after being pulled over by a police officer for a traffic stop is whether to consent to a breathalyzer test. Pennsylvania is an "implied consent" state, which means by virtue of driving on the roads of the Commonwealth one is presumed to consent to a BAC test after being arrested for DUI. Refusing the test can result in significant penalties including additional license suspensions, more severe criminal penalties, and disqualification from the ARD program (more on ARD in a latter post).

There is no rule to follow when considering whether to consent to a BAC test, whether by blood or breath. Refusing the PBT (portable breath test) often offered by police officers on the side of the road carries no penalty. Refusing to perform FSTs (field sobriety tests) also carries no penalty. It is only after arrest, usually when one is taken to the police station for a breathalyzer or to the hospital for a blood draw that implied consent comes into play.

For a first time offender arrested for DUI it might make more sense to agree to a BAC test as often he or she would be accepted into the ARD program, which has significant benefits and has a much shorter license suspension period.

For second or third time offenders a conviction of DUI starts to carry heavy consequences including longer periods of incarceration and year+ license suspensions. Anyone with prior offenses should think carefully prior to consenting to a BAC test.

Unfortunately, Pennsylvania does not provide a right to consult an attorney prior to choosing whether to undergo a BAC test. Knowing how to react should one be arrested for DUI and asked to undergo a BAC test ahead of time should be a consideration of every driver, whether he or she is drinking or not. Remember that even prescription drugs, if taken in quantities that can affect driving, is also sufficient grounds for a DUI arrest.

DUIs are a significant source of revenue for local municipalities and the Commonwealth. As efforts to legalize medical marijuana continue the sphere of potential DUI defendants will grow. Anyone driving on the roads of Pennsylvania should be aware of his or her rights and know in advance how to respond to the request for a BAC test.


  1. Any idea about the current laws in New York, Massachusetts, and NH?

  2. Sorry, only admitted in PA. You should check with a local attorney to find out your jurisdiction's rules.