Driver Accused of DUI Consents to Blood Test ― But Not Told of Right to Refuse: Is the Evidence Admissible?

A recent decision by the Superior Court of Pennsylvania serves as a reminder that there are many defenses available when fighting a DUI charge, regardless of the driver’s level of intoxication. When applicable, one such defense is that the driver’s consent to a blood draw was not legally valid.

Beer in Glove Box

In Commonwealth v. Terwilliger, an officer who was on routine patrol pulled over a Jeep that had a passenger-side headlight that was not operating. The driver did not have his driver’s license and insurance card, and the Jeep was not registered and it had a license plate on it that was for another vehicle. When the officer returned to his patrol vehicle to obtain additional information, he discovered that the driver’s operating privileges had previously been suspended for a DUI-related offense.

A second officer arrived on the scene and told the driver that due to numerous issues with the Jeep it could not be operated on the highway and would have to be towed. When the officer asked for additional information regarding the vehicle, the driver opened the glove box door apparently to obtain some documents. The officer observed two unopened cans of beer in the glove box. He also detected an odor of alcohol coming from the driver and observed that the driver had slurred speech and delayed cognitive thought.

The officer asked the driver to exit the vehicle to perform field sobriety tests. At that time, the driver provided a breath sample as part of a portable breath test. He performed the “nose touch test” during which he failed to touch his nose and swayed. On the next test, the one leg stand, the driver placed his foot down at 20 instead of 30 as instructed. The driver was then placed under arrest for DUI.

After placing him under arrest, the officer asked the driver if he was willing to go to the hospital to provide a sample of blood for blood-alcohol testing. The driver responded, “Yep.” The driver was not told that he would face additional penalties if he declined the test, and he didn’t hesitate when indicating “Yep.” He had no follow-up questions for the officers regarding the blood test.

The test revealed that the driver’s blood-alcohol concentration was approximately 0.232%, and he was charged with multiple counts of DUI. The driver sought to suppress the evidence of the blood test results, arguing that the Commonwealth conducted an illegal, warrantless blood draw, and he did not provide knowing, voluntary, or intelligent consent. The trial court refused, and a jury convicted the driver of DUI ― highest rate of alcohol and DUI ― general impairment. He was sentenced to one to five years’ imprisonment, plus fines, costs, and the loss of his driver’s license for 18 months. The driver appealed.

Implied Consent Statute

Under Pennsylvania’s implied consent statute, drivers are deemed to consent to chemical testing of their blood to determine its alcoholic content. But regardless of the statute, drivers have the right to refuse testing. Doing so results in mandatory driver’s license suspension, renders the fact of refusal admissible as evidence in a subsequent DUI prosecution, and authorizes higher criminal penalties if the driver is later convicted of DUI.

In order for a driver’s consent to testing to be valid, police must inform the driver of their right to refuse chemical testing, which the officer in this case did not do.

On Appeal

Because of the officer’s failure to advise the driver of his right of refusal, the Superior Court reversed the order of the trial court denying suppression and remanded the case for a new trial. The court reasoned:

There is no dispute that the police asked [the driver] to submit to the blood draw without notifying him of the consequences of refusal. Because [the officer] was statutorily obligated to inform [the driver] of his right to refuse chemical testing and the consequences arising therefrom, [the driver] could not have made a knowing choice regarding whether to submit to the blood draw. …Therefore, … we are constrained to conclude that the trial court erred in denying suppression.


The message is clear: Police must follow the letter of the law. If you are facing a DUI charge, we recommend that you consult with a qualified DUI attorney immediately to ensure that your legal rights are protected and that you exercise all available defenses.