I had a conversation with an old friend of mine, who is a distinguished Philadelphia criminal defense lawyer, and we were talking about the assertion that if you are physically unable to consent to a blood test, can the police deem the lack of consent a refusal? Have you seen anyone ever do this motion to suppress the refusal?
My understanding of the law in DUI (Driving Under the Influence) law in Pennsylvania where you are charged with DUI as a refusal, you can argue through a motion that the Commonwealth not be permitted to proceed under the third tier as a refusal case, but instead can only proceed as a first tier general impairment.
This decision is as to whether the refusal is legitimate, is for the Judge to decide at the motion. Two new recent cases have come down that show the direction of the law in Pennsylvania, but if the DUI is what caused the inability to consent, the case law seems to suggestion that the refusal will not be precluded from evidence at trial.
For example, if you are in a car accident, that you caused, and the cop can’t get your blood because you are incapacitated, that can be deemed as a refusal. However, if you are in police custody and the cop is taking you to the hospital to have your blood take and the cop is in an accident while driving you to get your blood drawn, and as a result of the cop’s accident, you can’t consent to give your blood, this is not a refusal. However, I am not at all certain about this answer.
As an aside, I recently had a case where my client did not speak english and could not consent be he can’t understand english and can’t read and write. I was read to do the motion and the Commonwealth made me an offer to make it a lesser tier so I do not get to do the motion. The client was happy.
I hope that answers your question grand pooba.