We always get the question regarding a refusal, “Should I refuse the blood or breath test?” As the law stands right now, you should never refuse to give blood or breath in a Driving Under the Influence case. Refusal DUI case are among the most difficult to deal with for the lawyer. When you are arrested in any type of criminal case the burden of proof for every element of the crime usually rests solely on the shoulders of the prosecutor. However, in refusal cases, the burden shifts to the defendant for one element of the crime.
Normally, the district attorney has to prove that you operated a motor vehicle and that you were under the influence of alcohol or a controlled substance. They must prove both beyond a reasonable doubt. However, when you refuse, the DA no longer has to prove that you were under the influence of alcohol or a controlled substance because you refused. No the only issue is whether you operated the car.
Missouri v. McNeely
There is a new case called Missouri v. McNeely that may change the rules for refusals. The Pennsylvania Supreme Court has yet to interpret the SCOTUS holding in McNeely, so we are unsure how it will effect us. I suspect, it will effect blood case and refusals on blood case, but I am unsure yet. The basic idea of McNeely is that police need to get a warrant for certain types of blood draws. We have to wait and see what happens.
Also, a refusal constitutes an automatic 12 month license suspension as a minimum; so the suspension could be more. Refusing is a bad idea. Further, due to PennDot and their own regulations, it takes approximately two months to get your license restored, so at a minimum, you could be looking at 14 months without a license. Also, if this is not your first DUI arrest, there are many other factors that can come into play regarding your driving privileges in general. Don’t make it a refusal case.