Can You Be Charged With a Crime for Refusing a Breathalyzer in Pennsylvania?

So, can you be criminally charged for refusing a breathalyzer? The short answer is: not exactly, but refusal can trigger license suspensions, increase DUI penalties, and be used against you in court.

Here’s what you need to know—and why you should speak with a criminal defense attorney immediately if you’ve refused a test.

What Is the Implied Consent Law in Pennsylvania?

Under 75 Pa. C.S. § 1547, Pennsylvania drivers automatically give “implied consent” to chemical testing (breath, blood, or urine) if they are lawfully arrested for suspected DUI.

That means: if you're arrested for DUI and refuse testing, the law treats it as a violation, even if you weren't over the legal limit.

Refusing a Breathalyzer at the Scene vs. at the Station

There are two types of breath tests you may encounter:

🔹 1. Preliminary Breath Test (PBT) – Roadside

• Often handheld, used during the traffic stop

• Voluntary—you can refuse without penalty

• Not admissible in court, used to establish probable cause

🔹 2. Evidentiary Breath Test – Post-Arrest

• Administered at the police station

• Legally required after a DUI arrest

• Refusing this test carries penalties under implied consent laws

Penalties for Refusing a Chemical Test in Pennsylvania

Refusing a chemical test (breath or blood) is not a crime, but it results in automatic civil penalties and can make your DUI case harder to fight.

Civil Penalties Include:

• Automatic license suspension:

  • 1 year for first refusal

  • 18 months for second refusal or if your license was already suspended

• Restoration fees and alcohol highway safety school

• Ignition interlock device requirement for 1 year

If You’re Convicted of DUI:

• Refusal can elevate the charge to the highest DUI tier, even if no BAC is recorded

• This means mandatory jail time, higher fines, and longer license suspensions—even for first-time offenders

Refusal Can Be Used Against You in Court

In Pennsylvania, the prosecution is allowed to introduce evidence of your refusal at trial to suggest that you were trying to hide your level of intoxication.

While it’s not a separate criminal charge, this evidence can make you look guilty to a jury and eliminate the need for chemical proof of intoxication.

Can You Be Forced to Submit to a Test?

Police cannot physically force you to take a test unless they obtain a search warrant (usually for blood testing).

However, courts have ruled that refusal is a voluntary choice—and choosing to refuse means you accept the consequences, even if you weren’t impaired.

Defenses to Refusal Allegations

A skilled DUI defense lawyer may be able to challenge the refusal by arguing:

✅ You weren’t properly warned of the consequences
✅ The arrest wasn’t lawful or lacked probable cause
✅ You didn’t actually refuse (e.g., misunderstood instructions or had a medical issue)
✅ The equipment was faulty or procedures were flawed
✅ The officer didn’t request a test or denied your attempt to comply

Filing a motion to suppress the refusal or challenging the legality of the stop itself may improve your chances of avoiding suspension or conviction.

Should You Refuse a Breathalyzer?

Refusing a test can sometimes avoid giving the prosecution BAC evidence, but it comes at the cost of license suspension and potentially harsher DUI penalties. Every situation is different, which is why you should never make this decision without speaking to a lawyer as soon as possible.

📞 Contact Mark D. Hauser, Criminal Defense Attorney, Today

If you refused a breath or chemical test and are facing a license suspension or DUI charge in Pennsylvania, don’t go it alone. With over 30 years of experience defending DUI cases in Philadelphia and beyond, Mark D. Hauser can evaluate your case, fight the suspension, and work to protect your license, your freedom, and your future.

📞 Contact Mark D. Hauser, criminal defense attorney, today for a confidential case evaluation.