Do you have to provide written or oral consent to a PA police officer in order to take a blood test or breath test when stopped for a PA DUI-DAI?
Jul 30th, 2007 | By Michael L. Saile, Jr., Esq. | Category: Blogs, DUI-DWI-DAI (Drunk Driving)You do not have to give outright consent to take a blood test or breath test at the time you are pulled over, at a hospital, or police station for a PA DUI-DAI. Many people think that if a Pennsylvania police officer wants to invade your body, by insertion of a needle to take your blood, that you must give full and clear verbal or written consent. This is not the case in PA, even if you are afraid of needles. Furthermore, you are not allowed to choose between the blood or breath test either.
PA has an implied consent DUI-DAI law. This means that when you applied for your PA driver’s license, you agreed to give consent for Pennsylvania police to test you for alcohol and/or drugs in your system. This includes the taking of your blood by needle.
Usually a Bucks County, Pennsylvania police officer will take the DUI-DAI suspect from the scene of the traffic stop to a local Bucks County hospital. Bucks County is one of several Pennsylvania counties that do not use the old Breathalyzer machine.
Bucks County DUI-DAI procedure is to take the suspect for a blood test. There are many reasons Bucks County police use this practice. Unfortunately, there are usually less defenses to attack the PA DUI-DAI blood test, then there are defenses to attack the old Breathalyzer machine test—Advantage to the prosecution.
The Pennsylvania police are required by law to administer the blood or breath test within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle. There are exceptions to this rule.
§3802 (g) of the PA DUI-DAI law states that if the PA police officer shows good cause explaining why the chemical test sample could not be obtained within two hours and where it is established that the individual did not imbibe any alcohol or utilize a controlled substance between the time the individual was arrested and the time the sample was obtained, then the blood or breath test could occur after the two hour point.
I believe that it would be a rare occasion for a Pennsylvania judge to outright dismiss a PA DUI-DAI case because the blood or breath test was administered more than 2 hours after the operation of the vehicle. I believe the police will find some kind of excuse for a late test.
Is this law fair? Couldn’t you have a higher blood alcohol content (BAC) two or more hours after you drove then you did at the time you drove? You could be found guilty under this flawed PA DUI-DAI law if you were sober while you drove, but two hours later your BAC was higher than .08.
You have also the choice to refuse the PA DUI-DAI blood or breath test. If you do refuse, you will be charge with Refusal to take the blood or breath test, which usually carries greater penalties.
The author of this Law Blog, Bucks County PA & Mercer County, NJ criminal attorney, Michael L. Saile, Jr., Esq. of Saile & Saile LLP, Attorneys-at-Law practices both New Jersey and Pennsylvania criminal, traffic violations, and DUI/DWI/DAI law. Check out our website for DUI penalties. We handle all NJ Municipal Court cases including DUI in the following NJ Municipal Courts: Hopewell Township, Ewing Township, Trenton, Lawrence Township, Hamilton, Pennington, and other Mercer County, Burlington County, and Camden County, NJ courts. We also handle lower bucks county DUI and traffic violation cases in the following towns: Bensalem, Southampton, Richboro, Newtown, Levittown, Langhorne, Doylestown, Warminster, Trevose, Feasterville, Warrington, Bristol, Fallsington, Yardley, New Hope, Holland, Washington Crossing, PA, and other Bucks County courts. We handle DUI cases in Philadelphia, Bucks, Chester, Delaware, and Montgomery County, PA. We are located just outside of Philadelphia in lower Bucks County.
Mr Saile, that is very intresting, the 2 hour limit. Is there scientific evidence that shows a Blood Alcohol Concentraion will increase over time, even if no more alcohol is consumed? I guess it makes sense, as your blood absorbs alcohol over time from the stomach.
This is where it can get very tricky. I belive the NJ Statute reads as having operated a motor vehicle while 0.08% BAC or higher. I would think then if someone got pulled over and was tested an hour later, and had a number of 0.08 or 0.09, an attorney could argue, with scientific evidence, that the BAC was below ther limit while the defendant was operating the vehicle.
Also, another point comes up here too. If it is a hit a run and the defendant leaves the scene and goes homes and gets drunk, the police come and arrrest the person at his home, and now being drunk they arrest him for DUI. That would defintivley not hold up in court.
There is a defense called extrapolation where a scientist would testify to the court that according to established science that the BAC would have been lower at the time of operation of the vehicle. This is clear science.
Unfortunately, NJ has abolished this defense. Do you think this is fair?
No, I do no think it is fair at all.
The 2100-1 Ratio is not fair in extrapolating breath alcohol to blood either. The State wants to split hairs here, 0.08, 0.09, 0.10, ect… In order to have an accurate result, the breath to blood ratio for each indicidual must be determined precisely and accuratley through clinical means, for each person, and then the “raw data” ,the signal, from a breath device put in the caluclation. Furthurmore, when dealing with numbers that are this small, even the specific gravity of ones blodd must also factor into the equation. As I said before, the only fair way to meet the Statute requirement is to have blood taken, and spilt samples sent to 2 different laboratories for testing. The rules and details of that could be worked out in a Statute.
I have read the NJ DUI Statute many times. Maybe there is something I am missing, but the Statute clearly reads operating a mortor vehicle with a BAC 0.08% or greater.
It is very unfair that the State will prosecute DUI and the Courts will convict a DUI defendant based on something that is unprovable the way the Statute is written within the current practices of Police. Someone should evenutally take this to the United States Supreme Court. It is so incredibly clear that DUI at low levels is unprovable at this time.
Jim
In the oral Argument video of April 5, 2007, the State’s Attoreny refered a few times to ‘legislative intent”. If the intent is based on blood in the outer blood vessels of the lungs, and they want to rely soley on breath testing, then the Statute should be rewritten to reflect that. Get rid of the 2100-1 ratio, get rid of claiming you know what a person’s blood alcohol concentrtation is in their blood, and make the statute read, as a raw data signal from the breath test, what ever the “count” system is, that with a certain “count” response from the Alcotest the person is above or below the legal limit. If they did that they wouldn’t need blood testing, and this argument over 2100-1 would be gone.
But just to state again, no analytical chemist, with 20 years wide experience testing things, would ever think you can accurately determine someones blood alcohol concentration from breath. It would be sheer luck to get it right. The 2100 ratio they use could actualy be anywhere from like 1600- 3500, which is a range way wider then could be used in a calculation to say a person had a 0.08. 0.09, or 0.10, or any number for that matter. It is increbibly unfair, unscientific, and unrealistic!
Rewrite the statute to reflect breath or go to blood testing.
By the way, the “count” scenerio I described above would be extremely hard to write into a Statute. Instrument to instrument the electronics are slightly different and give different counts. Also, it depends on light intenstity from the lamp in the instrument (old or new). Each instrument would need to be calibrated with a standard solution, the calibration checked with a standard solution from a different “lot” or “batch” of solution, (this should be taking place now too). The response factor for each given test would represent the “count” threshold for each test, to determine if a person is legal or not legal for DUI. I would not trust a “black box” such as the Alcotest with an experienced chemist let alone a police officer. The analyst needs more control , more data for troubleshotting and detrmining if the machine is working properly, then the Alcotest currently provides now. There needs to be defined “system suitability” each time the machine is used. A “system suitability” that is scientificaly sound, unlike what they have in place now. Where the machine can be calibrated and checked by the same solution during a given test. This method would be thrown out if you presented it to the lab director at Merck for example.
It is incredibly unscientific. No matter how much the State and Drager say it is reliable, is it not reliable in any way , shape, or form as it stands now.
Jim
Let me step back a minute. I am not saying the Alcotest can not fairly accuratley , under proper use, and good working conditions, measure alcohol atoms in a breath or air sample. That is not what I am saying.
I am saying it is not scientificly sound to then take that number and convert it to blood alcohol concentration. I am also saying the the machine itself it not being used correctly. New Jersey needs for one , to have the temperture sensor added on to the instrument. Also, the machine does a self calibration with a solution already in the machine. This calibration is then checked by the same solution befor , in between, and aftr breath samples. This is not good science at all. Good science is calibrating with one solution, and checking that calibration against another solution. If the soluton in the machine is compromised, the verification results during a breath test are meaningless, because it is the same solutioon and will be in line with the same respone factors. This is a major problem as I see it for the actual use of the machine.
Also, the raw data needs to be made available to us, the actual number counts , the (absorbance counts), the lamp intensity information, and a response factor chart. All we get now after we blow into the machine is a print out of the final results. Thats all the police get, thats all the defense gets. That is a bad procedure and bad practice. All raw data must be available for review. The data for the actual calculation must be available for review for anyone to do by hand on paper. This is absolutley necessary for any analysis. It is OK to have a computer do the calculation and print out a final result, but all data must be availble for anyone to do the calculation by hand. The formula for the entire calculation must be available and presented with raw data on every data sheet, or lab notebook, or printout. Without being bale to review the raw data for each test, the actual result it prints out can not hold up in a Court. The FDA would never buy it. You know what I am saying? Peolple reputations and livlihoods are on the line when they are arrested for DUI. We can not allow the State to any longer get away with this type of method. It is outrageous and would not stand up under scrutny if it were heart medication for example.
Someone should take this all the way to the United States Supreme Court with pharmaceutical company experts who are experts in FDA regulated analyticl testing.
I realized I forgot one major point. The IR Spectra and band width.
IR Spectra for every breath result needs to be made available to the defense to determine if is OK. ( the picture of the test). For example, is it on the right wavelength, were there any interferences, does it look ok. It is not really legitimate, when someone’s livelihood is at stake to take a computer’s word for it. Each breath test spectra must be available in the data package. That is a must. There should be no question about it!
In HPLC or GC analysis, the chromatograms are extremely important part of the data package, likewise, also, in single wavelength spectra analysis such as IR an UV analysis, the spectra is extremely important part of the data package. Without it there can be no data!
This right here is the argument that cannot be overcome by the State or Dragger. If the spectra of my test is not available, then there can be no legitimate data.
That is a analytical fact. All analytical results produced by GC, HPLC, IR, or UV, need to have the spectra and/or chromatograms attached in the data package. There is no way around it. Without the actual spectra, there is no way to support the data under FDA type of scrutiny.
Jim
The more I think about the Alcotest, the more questions I have, but I have another essential point below.
The question of reliability of any analytical instrument is does it work. In order to do this a lot of validation work would need to be done, that goes way beyond calibration.
Has Dragger provided raw data for the validation to anyone in the United States? I am not talking about software validation, I am talking about the hardware validation.
Not only does the applied technology need to be shown it works in Draggers instrument through a rigorous validation, but each and every instrument put in use needs to be validated, as opposed to just being calibrated.
Does any in New Jersey, the State, have these validation packages? This would include hundreds , if not thousands of actual ‘IR Spectra”, and raw data abs/ transmission counts to go with the pictures. Explaining what each one is. Protocol for hardware, chemistry/validation ( that goes far beyond simple calibration).
Even if analytical instruments are made overseas, when they are first put into use in the United States, there is what is called a IQ, initial qualification. This validation goes far beyond calibration the instrument. It would include many things. I am more familiar with HPLC validation, however, IR would need to be validated in many of the same ways form a analytical point of view, as opposed to just the software. This validation is also required to be done once a year. Not just a periodic calibration verification, but a full blown validation.
This is a must.
Without actual Raw Data Validation packages showing each and every instrument works to specification, hardware and software, any data from the instrument cannot be valid. It does not mater if a validation was done overseas. Once the instrument hits US soil, it needs to re revalidated. Every time an instrument is moved, like form a NJ warehouse/dockyard, to a police station, it needs to be re validated, the full package. Not Just Calibration.
This is also Federal FDA Guidelines.
Do we have these validation packages?
I am going got continue to think about this in more detail and keep you posted. Reliability of an instrument greatly depends on its validation.
Jim
I just want to make the point clear. If you have any thoughts on it and you have time, please respond.
I know form the Oral Arguments of April 5, 2007 that an argument for a general validation was made; does the software work and does it work with the hardware. I assume this is what is taking place right now.
However, it should be argued in the Court, I feel, that after this step going on now, each and every instrument in use needs to be validated.
I do not care how much it will cost the State. Did the State care how much it is costing the defense to do the general overall technology validation?
Citizens of NJ are having there reputations and careers on the line for the rest of their lives if convicted of DUI. These instruments , each and every instrument that is used, needs to be validated, not just calibrated.
Other then the raw data packages for each test, Validation packages for each instrument need to be available. Validations that were performed in the United States, in the final resting place of each instrument, for each instrument.
What do you think?
More Validation thoughts.
The individual instrument validations I am suggesting would not be a line by line source code investigation for each instrument, but it would be more then just a simple calibration.
Some things which would be included in what I am suggesting, would be an onsite validation, done at the time the instrument is first put in place at a police station, and annually.
1) calibration check of standard solutions
2) linearity check
3) interfering substances check ( solution of ethanol and methanol , as well as other possibilities)
4) calculation/ software verification – putting in a software program that will feed the instrument raw data, and see if it comes out with the right result
5) reproducibility
6) wave length calibration check- verification – is it on the right line?
These are just a few of the minimum requirements for onsite validation I am proposing.
Analytical instruments in use that are used without a protocol that would include these things, on site, should not be in use. Data from this instrument can ruin people’s futures. We as citizens have a right to know the results are accurate and reliable.
Only proving one instrument and one set of software is ok is not enough. Each and every instrument needs to have VALIDATION.
We as people do not accept our Tylenol, our Prozac, our Haliperidol, or even or vitamins to be tested on instruments that are not validated.
This is a fight worth fighting.
We cannot allow instruments to produce results that can ruin a person’s life be used without validation on each and every instrument used to produce the results.
Along with this validation we would need the following
1) validation package available
2) raw data from every breath test, including spectra and abs/transmission
3)hand caluculation data so anyone could take the raw data and calculate the result.
4) plus everything else we already are entitled to
I think all of this should be argued for in front of the NJ Supreme Court the next time the Chun defernse has a chance to argue.
If my case is not dismissed, this is one the arguments I would like argued to a Municipal Judge, and let it go on from there.
MR. Saile, i was talking with an attornery about blood tresting for DUI, AND HE STRONGLY FELT THAT IF A NURSE OR DOCTOR STICKS A NEEDLE IN SOMEARMS ARM TO DRAM BLOOD FOR THIS, IT IS OPEN TO AN IMMEDIATYE TORT IN NJ.
Is this true, are hospitals afraid of tort suits and therefore unwilling to jab a suspect with a needle?
one attorney seems to think it could be a tort and subject to a 4 million dollar lawsuit, which the plantiff would definitivley win!