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As featured in MONTCO.TODAY's "Ask a Real Lawyer"

Question: Should I take a breathalyzer or blood test if requested by law enforcement at a DUI stop?

Answer provided by: Steven F. Fairlie, Esq. from Fairlie & Lippy, P.C.

Steven F. Fairlie, Esq.

The answer depends on your circumstances. Refusal of formal BAC testing will result in the suspension of your driver's license for at least one year even if you are ultimately found not guilty of DUI. This suspension is in addition to any suspension that may result from criminal proceedings. For this reason alone it is generally better to submit to formal BAC testing, although there are many variables that could change that. On the other hand, if you refuse formal BAC testing, then the police obviously do not have that evidence to use against you at trial. It is still possible, and often times very likely, that you could be convicted even without formal BAC testing. The prosecution can rely on evidence of poor driving, slurred speech, lack of coordination, and failed field sobriety testing.

It should be noted that while a failure to perform formal testing can result in a suspension of your driver's license, there is no suspension for refusal of hand-held on scene breath testing and field sobriety testing such as the "one leg stand" or "walk and turn" tests. If you've had too much to drink it is generally a good idea to refuse these tests.

In Pennslyvania DUI penalties are separated into 3 tiers. The first tier is General Impairment, which covers a BAC of .08% to .99% or someone who is incapable of safe driving due to intoxication.  The second tier covers a BAC of .10% - .159% or a General Impairment DUI where there was a car accident. The third tier covers a BAC of .16% or higher, the presence of drugs in a driver’s blood, any DUI where the driver refused formal testing, or that someone’s ability to drive was impaired by drugs. So, without a BAC the Commonwealth can only prove your guilt of DUI by proving that you were incapable of safe driving due to alcohol or your ability to drive was impaired by drugs. This makes a much harder case to prove than where there is a BAC because the Commonwealth must rely solely on circumstantial evidence of your intoxication.

Criminal penalties for DUI increase with each tier, and also increase with each prior conviction for DUI an individual has (see our DUI penalties chart in the DUI section of this website). All DUI convictions except for a first offense General Impairment carry a license suspension and mandatory jail sentence of anywhere from two days to one year. If you have no prior DUI convictions or other recent misdemeanor or felony convictions and there is not a serious accident involved, you will likely be eligible for the ARD program which eliminates jail time and dramatically reduces applicable driver's license suspensions.

Taking all of this into consideration, it is generally advisable for most drivers to refuse portable roadside breath tests and field sobriety testing but, if arrested, to submit to requested breath testing or blood testing at that point. People who have multiple prior DUI convictions and are subject to significant jail time might find it more advisable to refuse all testing. These are general guidelines. Unfortunately there is no universal rule that will apply equally to everyone.

To arrange a free consultation with attorney Steven F. Fairlie, here to email a Montgomery Bar Association LRS advisor now (, or call 610-994-3656 during regular business hours (Monday-Friday, 9 AM-4PM). If contacting us by phone, please be sure to mention this attorney's name and how you heard.about us. Automated referrals to other Montgomery Bar Association member-attorneys in your area offering free or deeply discounted consultations through our service are available Online anytime at

More about this Montgomery Bar Association member-panelist (bio provided by this attorney prior to publication):

Steven Fairlie has Chaired the Criminal Defense Committee since 2001. Prior to that he was a Montgomery County Assistant District Attorney. He has been designated a Pennsylvania "SuperLawyer" by Philadelphia Magazine and placed on their list of the Top 100 Lawyers in Pennsylvania, The National Trial Lawyers Top 100 Trial Lawyers, Top Rated Attorneys in Pennsylvania as published in The Wall Street Journal, Philadelphia Inquirer, and The Legal Intelligencer, The National Association of Distinguished Counsel, The National Advocacy for DUI Defense Top 100 Driving Under the Influence (DUI) Attorneys, and is a holder of Martindale-Hubbell's prestigious "AV" rating and Client Distinction Award, designating preeminent lawyers based upon legal ability, ethics, and client satisfaction. He has been named a Fellow of the Litigation Counsel of America (awarded to less than one-half percent of judges, lawyers, and scholars in America), received the National Academy of Criminal Defense Attorneys Top 10 Attorney Award, and been named a Top 100 Criminal Defense Lawyer by the American Society of Legal Advocates. He has won many other awards for his trial work that are simply too numerous to list here. Mr. Fairlie teaches numerous seminars for criminal lawyers every year on a local and statewide basis.


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