Superior Court Clarifies Xander for DUI Refusal Cases

On December 16, the Superior Court decided Commonwealth v. Olsen, holding that in order for a DUI chemical test refusal to trigger enhanced penalties, the arresting offer must have at least begun or attempted to read the implied consent form, DL-26, to the defendant. Olsen clarified the rule set forth in Commonwealth v. Xander in 2011, wherein the Superior Court held that the officer must apprise the individual of the consequences of refusing the chemical test, and failure to do so precludes the Commonwealth from seeking the enhanced penalties.

In Xander, the defendant was so unruly and uncooperative in the police vehicle that the officer did not even bother reading DL-26 to her. Nevertheless, the Commonwealth sought to impose the penalties that a refusal carries with it, and the Superior Court held that such penalties could not be imposed without the defendant being told about the consequences of a refusal. The facts were virtually identical in Olsen, with the one key difference being that in Olsen, the police officer attempted to read to the defendant the DL-26 form, but Olsen’s ongoing “vulgar tirade” and physical violence made it impossible to finish reading the form. As such, the Superior Court distinguished Olsen from Xander, and held that an officer must at least make a good-faith effort to read DL-26 to the individual before the enhanced penalties can be imposed. If the officer made the good faith effort, then the enhancements can be applied. Read more about DUI penalties.