You Have No Right to Choose The DUI Testing Method

Filed under: DUI by Contributor @ January 10, 2016



Recently, the Supreme Court of Pennsylvania decided that a motorist does not have the right to select from the three available methods of testing when arrested for DUI. This issue came before the Court after a motorist was arrested on suspicion of driving under the influence. After being taken to the hospital for blood chemical testing, the motorist requested that he be given an alternative form of testing, either urine or breath or both, because he had a large pooling of blood present in his arm as the result of a relatively minor bump suffered earlier that day.


Police refused the motorist’s request to administer the alternative test and informed the motorist that a failure to submit to the blood testing would constitute a “refusal” under the DUI statute. The motorist replied that he was not refusing to submit to testing; he was requesting a different allowable method under the statute. As a result, police decided that the motorist had refused to take a test and reported his “refusal” to PennDOT, which promptly suspended the motorist’s license due to his “refusal ” to submit to testing. In his subsequent appeal of his license suspension, the Luzerne County Court of Common Peas agreed with the motorist that his request for, and willingness to submit to, alternative approved testing methods did not constitute a “refusal” under §1547. The Common Pleas Court relied on a Pennsylvania Superior Court holding that an officer’s refusal to grant alternative testing to a brittle diabetic violated his right to alternative testing under §1547(i). The Common Pleas Court ordered the motorist’s license be reinstated; PennDOT appealed this decision to the Commonwealth Court as the issue was a civil license issue.


The Commonwealth Court overturned the Common Pleas Court holding, citing well-established precedent that the alternative testing methods afforded under §1547 were for the use of police officers only, and not for the motorist to choose. The Court went further to state that the method chosen by the officer is the only method to be consented to by a motorist and that failure to consent to this test, regardless of the willingness to take any and all other approved methods, constitutes a refusal under §1547.

On appeal to the Supreme Court of Pennsylvania, the Court concluded that a motorist does not have the right to chose between the alternatives available under §1547. The Court reasoned that if the legislature intended to empower a motorist with the ability to select the method of testing, it would have expressly done so under the statute. The Court went further to point out that, under the statute, a motorist has the ability to select an additional test from a physician of his choosing after that person has already has been tested at the direction of a police officer. The Court concluded that the motorist’s conduct constituted a “refusal” because after twice refusing to submit to the officer’s request for testing, and after acknowledging the DL-26 warning that a refusal to submit to testing would result in a license suspension, his repeated and continued failure to submit to testing amounted to a violation of the implied consent statute.

As a result of this holding, a motorist has no right to select the method of chemical testing when arrested for DUI. The choice of testing method falls solely within the discretion of the arresting officer, and a motorist may only select the method to be used after he has complied with the required testing method selected by the officer.  To elaborate on this last point, we have won cases in the past where the motorist submits to the test administered by the officer but then requests a different, independently administered test.  Failure of the officer to comply with such a request can result in dismissal of the charges later.  Thus, if you are arrested for DUI and tested, you should always consider requesting that the police take you to an independent facility for another test.  This can also help if it turns out that the test chosen by the police was inaccurate.


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