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: Can a person accused of DUI choose the BAC test to be used?

In the last post, this blog reviewed the broad outlines of Pennsylvania's implied consent law. Last week, the application of the implied consent law to persons with various medical conditions was raised in a case argued before the state's Supreme Court.

The case involved an attorney who was stopped by police and charged with DUI. Police asked the man to undergo a chemical test of his blood alcohol content ("BAC"), but he refused, citing concerns about his health. The man offered to take a breathalyzer or urinalysis test, but the police refused this request and charged him with violating the implied consent law. The man was convicted of DUI based on the court's finding that he had refused to submit to chemical testing for alcohol.

On appeal to the state supreme court, the man's lawyer argued that he should have been allowed to refused to give a blood sample as requested by police and to select another method for testing his BAC. The lawyer cited an earlier decision of the Supreme Court, in which a diabetic's refusal to allow his blood to be drawn was "not unreasonable." The central issue was whether the statute that specifies procedures for administering blood tests gives the accused person the right to refuse the police officer's choice of test and to choose a different test. The state responded by arguing that the statute only gives the motorist the right to choose additional testing and does not allow the motorist to substitute another test for the test ordered by the arresting officer. The court's decision is not likely to be known for at least two or three months.

The right to reject a particular form of alcohol testing, such as giving a blood sample, may be very important to persons with certain medical conditions such as anemia or diabetes. Anyone charged under the implied consent law with refusing a BAC test for any reason may wish to consult with an attorney who specializes in defending DUI and implied consent cases. A knowledgeable attorney can provide a helpful assessment of the facts of the case, suggest possible defenses and give an overview of possible outcomes, including the chance of winning an acquittal.

Source: The Legal Intelligencer, "Parties Spar Over Alternative DUI Testing at Arguments," Max Mitchell, May 12, 2015

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