10.2 Implied Consent & Chemical Testing

10.2 Implied Consent & Chemical Testing

Chemical testing of breath or blood is a fundamental element in building a strong DUI prosecution. In Pennsylvania, chemical testing is governed by the statutory framework of 75 Pa.C.S. § 1547, commonly known as the Implied Consent Law. However, chemical testing procedures have been significantly reshaped by federal and state constitutional case law. Police officers must master statutory mandates, mandatory warnings, warrant requirements, and drug recognition procedures to ensure evidence remains admissible in court.

---

Pennsylvania Implied Consent Law (75 Pa.C.S. § 1547)

Under 75 Pa.C.S. § 1547(a), any person who drives, operates, or is in actual physical control of the movement of a motor vehicle within Pennsylvania is deemed to have given consent to one or more chemical tests of breath or blood for the purpose of determining BAC or the presence of controlled substances.

Prerequisites for Requesting Chemical Testing

Before an officer can legally request chemical testing under Section 1547, two statutory prerequisites must be met:

1. Lawful Arrest: The officer must place the driver under lawful arrest for a DUI offense under 75 Pa.C.S. § 3802.
2. Reasonable Grounds: The arresting officer must possess reasonable grounds (probable cause) to believe the suspect was driving, operating, or in actual physical control of the vehicle while under the influence of alcohol or drugs.

---

Implied Consent Warnings: PennDOT Form DL-26

If a driver is arrested for DUI, the officer must request chemical testing and read the official PennDOT Implied Consent Warnings verbatim. PennDOT provides standardized forms for this purpose:

• Form DL-26A: Standard warnings for Chemical Breath Testing.
• Form DL-26B: Standard warnings for Chemical Blood Testing.

                  PennDOT DL-26 Warning Protocol
  ┌─────────────────────────────────────────────────────────────┐
  │ 1. Officer places suspect under lawful arrest for DUI       │
  ├─────────────────────────────────────────────────────────────┤
  │ 2. Officer reads DL-26 form verbatim to suspect             │
  ├─────────────────────────────────────────────────────────────┤
  │ 3. Officer explicitly requests Chemical Test (Breath/Blood)│
  ├─────────────────────────────────────────────────────────────┤
  │ 4. Suspect informed of license suspension penalties:        │
  │    • 1st Refusal: 12-Month Administrative License Suspension │
  │    • 2nd/Subsequent Refusal: 18-Month License Suspension   │
  ├─────────────────────────────────────────────────────────────┤
  │ 5. Suspect signs form acknowledging warnings & gives decision │
  └─────────────────────────────────────────────────────────────┘

Mandatory DL-26 Warning Content

Officers must explicitly advise the suspect of the following:

1. You are under arrest for driving under the influence of alcohol or controlled substances.
2. I am requesting that you submit to a chemical test of your breath/blood.
3. If you refuse to submit to the test, your driver's license will be suspended for at least 12 months (or 18 months if you have a prior refusal or DUI conviction).
4. If you are convicted of violating § 3802(a)(1) and refused chemical testing, you face the highest rate penalty tier (Tier 3) under Pennsylvania sentencing guidelines.
5. You do NOT have a right to talk to an attorney or anyone else before deciding whether to submit to testing, nor do you have a right to have an attorney present during testing (Miranda rights do not apply to administrative chemical test requests under PA law).

---

Constitutional Impact: Birchfield v. North Dakota & Commonwealth v. Myers

Two landmark judicial decisions altered chemical blood testing procedures in Pennsylvania.

1. Birchfield v. North Dakota (579 U.S. 438, 2016)

The United States Supreme Court evaluated whether warrantless chemical tests violate the Fourth Amendment:

• Breath Tests: Held to be constitutional under the Search Incident to Arrest exception. Breath tests are non-invasive and present a minimal privacy intrusion. Officers may compel a breath test upon arrest without a warrant, and states may impose criminal penalties for breath test refusal.
• Blood Tests: Held that blood draws are physical intrusions into the human body. Warrantless blood draws CANNOT be justified as searches incident to arrest. Furthermore, motorists cannot be subjected to criminal penalties or enhanced criminal sentences for refusing a warrantless blood test.

2. Commonwealth v. Myers (640 Pa. 636, 2017)

The Supreme Court of Pennsylvania built upon Birchfield to clarify implied consent regarding unconscious suspects:

• The court ruled that 75 Pa.C.S. § 1547 does not grant blanket statutory authorization for officers to draw blood from an unconscious DUI suspect without a search warrant.
• Implied consent is a statutory presumption, but chemical testing requires either voluntary consent or a search warrant based on probable cause. Unconscious individuals cannot provide active, voluntary consent.

Operational Summary: Blood vs. Breath Testing Rules

---

Drug-Related DUI Testing & DRE Protocol

When an officer suspects a driver is impaired by drugs or a combination of alcohol and drugs, breath testing is insufficient because breathalyzers detect only ethyl alcohol. The officer must obtain a blood sample through voluntary consent (DL-26B) or a search warrant signed by a magistrate.

Drug Recognition Expert (DRE) 12-Step Evaluation Protocol

To identify specific drug categories (e.g., CNS Depressants, CNS Stimulants, Hallucinogens, Dissociative Anesthetics, Narcotic Analgesics, Inhalants, Cannabis), certified Drug Recognition Experts (DREs) perform a standardized 12-step evaluation:

1. Breath Alcohol Test: Rule out alcohol as the sole cause of impairment.
2. Interview of Arresting Officer: Gather preliminary facts, driving behavior, and observations.
3. Preliminary Examination: Check suspect's medical condition, pupils, and initial pulse.
4. Eye Examination: Evaluate Horizontal Gaze Nystagmus (HGN), Vertical Gaze Nystagmus (VGN), and Lack of Convergence (LOC).
5. Divided Attention Tests: Administer Romberg Balance, Walk and Turn, One Leg Stand, and Finger-to-Nose tests.
6. Vital Signs Examination: Take blood pressure, body temperature, and pulse rate.
7. Darkroom Examinations: Measure pupil sizes in room light, near total darkness, and direct light using a pupillometer; check reaction to light.
8. Muscle Tone Examination: Check for rigid, flaccid, or normal muscle tone.
9. Injection Sites Examination: Inspect arms and body for needle marks or track lines.
10. Suspect Statements & Interrogatories: Administer Miranda warnings and question suspect regarding drug use.
11. Evaluator's Opinion: Formulate a formal opinion on whether suspect is impaired, and identify the specific drug category or combination.
12. Toxicological Analysis: Obtain blood sample for laboratory analysis to confirm or refute DRE findings.

By adhering strictly to Birchfield search warrant requirements and leveraging the DRE 12-step protocol, officers ensure both statutory compliance and constitutional protection in DUI prosecutions.