Driver Accused of DUI Doesn’t Consent to Blood Test: Is ‘Refusal’ Evidence Admissible at Trial?

Last week, we blogged about Pennsylvania’s implied consent statute, pursuant to which anyone driving in the Commonwealth is deemed to consent to chemical testing of their blood to determine its alcoholic content. Regardless of the statute, drivers have the right to refuse testing. However, 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.

As we discussed in last week’s blog, in order for a driver’s consent to testing to be valid, police must inform the driver of the right to refuse.

Today, we look at a recent decision by the Pennsylvania Supreme Court that addressed the issue of whether introducing evidence at trial that a driver charged with DUI refused to submit to chemical testing violated his Fourth Amendment rights under the U.S. Constitution to be free of unreasonable searches and seizures.

Hospital Needle

In Commonwealth v. Bell, a driver was arrested on suspicion of DUI and was informed of his right to refuse a blood test. He chose to exercise that right. The driver subsequently was charged with DUI ― general impairment and sought to suppress, prior to trial, the evidence of his refusal, arguing that it was his constitutional right to refuse. The trial court refused to suppress the evidence, and the case proceeded to a nonjury trial that same day. During trial, a detective testified that the driver asserted that he did not want a needle in his arm because he had previously contracted hepatitis from a hospital needle. The driver was found guilty of the DUI charge.

The driver subsequently asked the trial court for reconsideration, and the court ruled that the matter was controlled by the U.S. Supreme Court’s 2016 ruling in Birchfield v. North Dakota, which found that “a warrantless blood test violates a defendant’s right to be free from unreasonable searches and he thus has a constitutional right to refuse it, which refusal cannot provide the basis for him to be convicted of a crime or otherwise penalized.”

Ultimately, the trial court determined that the driver was entitled to a new trial because the court had relied on his refusal of the blood test as a basis for the DUI conviction.

The Commonwealth then appealed to the Superior Court of Pennsylvania, which reversed the trial court’s order granting a new trial and remanded the case back to the trial court for sentencing.

The driver then appealed to the Pennsylvania Supreme Court.

No Constitutional Protection for Evidentiary Consequences

In ruling that the driver’s refusal to submit to the blood test was admissible at trial, the Pennsylvania Supreme Court, relying on the Birchfield case, found that while the Fourth Amendment protects drivers from unreasonable searches and seizures (i.e., a warrantless blood test), the evidentiary consequences of refusing to submit are not afforded constitutional protection. As the court stated:

Undeniably, the Birchfield Court rejected criminal prosecution as a valid consequence for refusing a warrantless blood test by stating “motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.” … At the same time, the Court did not back away from its prior approval of other kinds of consequences for refusal, such as “evidentiary consequences.”


Unfortunately for the driver, the “refusal” evidence will stand, and he will not get a new trial. 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.