PA SUPREME COURT HOLDS THAT ANY RESPONSE OTHER THAN “Yes, where do I blow?” “Yes, which arm do you want to stick?” or “Yes, where do you want me to pee?” CAN BE DEEMED A REFUSAL TO SUBMIT TO CHEMICAL TESTING

The PA Supreme Court recently decided the case of Nardone v. Dept. of Transportation, 141 MAP 2014 (December 29, 2015), addressing conflicting interpretations of the “Implied Consent (refusal) Law” by the Commonwealth and Superior Courts, holding that a motorist who has been asked to submit to the chemical testing of his breath, blood or urine does not have a statutory right to request an alternative test to that chosen by the officer.


Police arrested Nardone for “DUI” and transported him to a nearby hospital for chemical testing. After reading a PennDOT Form DL-26 to inform him of the Implied Consent Law and the consequences of refusing to submit to chemical testing, police requested that he submit to a chemical test of his blood. Nardone replied by showing police what he considered to be an inexplicably large coagulation of blood in his arm resulting from a relatively minor bump sustained earlier in the day, and he expressed his concern that his body may react in a similar way to a needle.

Nardone offered to submit to a urinalysis, a breathalyzer or both. After brief discussion, police responded that his request for an alternative test constituted a refusal because they held exclusive discretion to select the test.

Nardone took the position that he was NOT refusing chemical testing and he again reiterated that he was willing to take either or both of the other tests. Nardone’s license was therefore suspended by PennDOT for the “refusal” to submit to the test requested by the police.

Nardone appealed his license suspension to the Court of Common Pleas of Luzerne County which agreed with Nardone, determining that his failure to submit to the test requested by police did not constitute a refusal because he had otherwise agreed to take a reasonably practicable, different test pursuant to Section 1547(i) of that statute. This appeal was filed as a civil matter pursuant to the applicable license appeal statute. The Luzerne County trial court had relied upon a previous criminal case decided by the PA Superior Court which held that an officer’s refusal to grant alternative testing to a motorist who presented a facially valid allegation that he was a brittle diabetic suffering infection from a recent injection violated the right to alternative testing found in Section 1547(i).

PennDOT appealed the Luzerne County trial court decision to the Commonwealth Court rather than the Superior Court because Nardone’s case was an appeal of a civil license appeal matter. The Commonwealth Court reversed the trial court in a unanimous, unreported panel decision. In support of the reversal, the Commonwealth Court relied on the “well-established precedent” of the intermediate court that “Section 1547 does not afford a motorist a choice among the three tests listed; rather, it is the police officer who has the option to choose the type of chemical test to be administered. It is for this reason that anything other than a direct assent to submit to the chemical test requested by the police officer constitutes a Section 1547(b)(1) refusal. It does not matter that the motorist has offered to submit to a different test.


(1) In response to a request for chemical testing arising out of a DUI arrest, does a motorist have a statutory right to request alternative chemical testing under the Implied Consent Law of the Vehicle Code?

(2) In response to a police request for chemical testing arising out of a DUI arrest, does a motorist’s request for alternative chemical testing, without more, constitute a refusal to undergo chemical testing under the Implied Consent Law?

(3) If a motorist does have a statutory right to request alternative chemical testing under section 1547(i) of the Vehicle Code when arrested for a DUI, must the motorist first show that they have a medical condition preventing him from undergoing the chemical test requested by the police?


(1) Nardone had no statutory right to request alternative testing once he was confronted with an official request to submit to a blood test.

(2) The Commonwealth satisfied its burden and Nardone’s conduct constituted a refusal.

(3) Because the Supreme Court rejected the existence of a right to chose one’s own testing method, it found it unnecessary to review this issue any further.


The Commonwealth Court has consistently held that the “Implied Consent Law” at Section 1547 of the Vehicle Code requires a motorist to assent unequivocally to an official request to take whichever statutorily-prescribed chemical test police select on pain of automatic license suspension. In other words, any response other than a “Yes, where do I blow?” “Yes, which arm do you want to stick?” or “Yes, where do you want me to pee?” can be deemed a refusal. On the other hand, the Superior Court construction has discerned a motorist’s compliance with the law if he responds to the official request by asking to take a reasonably practicable, prescribed test of his choosing.


The Supreme Court concluded that Section 1547(i) plainly and explicitly provides that a motorist’s request for a chemical test of his breath, blood or urine shall be honored if reasonably practicable. However, the statute does not clarify when the motorist may exercise that right. Can the test serve as an alternative to a test selected by a police officer for purposes of satisfying implied consent? As an additional test to the officer’s chosen test? As a means by which to acquire a test when none was officially requested? Or, as some combination of these three uses?

In order to determine the answer, the Court analyzed the statute pursuant to the rules of statutory construction to determine if the statute could be read in an unambiguous manner.

The Court concluded that Section 1547(i) itself specifies no intent to confine its application to criminal law proceedings.

The Court also concluded that the General Assembly did not intend Section 1547(i) to modify the essential construct of implied consent appearing in Sections 1547(a) and (b) by effectively empowering a motorist to negate his implied consent to the test requested by police. Section 1547(a) does not express a hierarchy among the three possible tests in terms of quality, accuracy or reliability. By implicitly consenting to any and all chemical tests in Section 1547(a), a motorist arrested for DUI is subject to any and all tests, and he effectively relinquishes any right to choose his preferred test over an officer’s.

Additionally, the Court concluded that had the General Assembly intended Nardone’s interpretation to control, it easily could have made a right to alternative testing explicit in the statute. But, it did not do so.

The Court also noted that the very structure of the Implied Consent statute does not support Nardone’s position that a motorist has an implicit right to alternative testing. Specifically, at the outset of the statute, the Court noted that Sections 1547(a), (b), and (b.1) pertain to chemical testing given at the direction of police; Sections 1547(c),(e), and (f) pertain to the admissibility of evidence at trial; and, Section 1547(g) provides that the final outcome of the matter determines who shall pay the costs of chemical testing.

Only then, after all phases of the Commonwealth’s civil and criminal cases against a motorist are covered, does the statute address the notion that a motorist may obtain a chemical test of his preference through Section 1547(h), which provides that a person already tested at the direction of a police officer may obtain an additional test from a physician of his choosing, and Section 1547(i).

The Court also noted the following factors contributed to the decision:

First, it is wholly consistent with the Court’s own directive that interpretations of the Implied Consent Law are to enhance rather than impede its enforcement, thus advancing the purposes of the law.

Second, it makes it easier to acquire a chemical testing, which the Court recognized as an additional purpose of the remedial scheme.

Third, it decreases the risk that police will be unduly delayed while exercising their duty under the remedial scheme to direct the course of chemical testing while in no way impairing a motorist’s retained right to obtain an additional, reasonably practicable chemical test of his choosing immediately afterward pursuant to Section 1547(i).

Lastly, it eliminates the necessity of discerning whether an alternative test under 1547(i) is “reasonably practicable.” And, good-faith attempts by police to accommodate the “reasonably practicable” standard could result in lengthier transport times leading to delayed initial testing and a consequential increased risk of compromised test results.


The Court concluded that the record made clear that the officers explained Nardone’s implied consent rights and obligations before requesting that he submit to a chemical test of blood. By Nardone’s own admission, he twice disputed the officers’ claims that he was refusing their requests by responding with his own request for alternative testing. He never voiced so much as an inclination, let alone an intention, to submit to the officers’ request to take a chemical test of his blood even after he was told that refusing an official request as he was doing amounted to a violation of the Implied Consent Law.

Nardone never agreed to take the blood test during this time and, he chose to sign the form and add a notation that he had offered to take the two other chemical tests. In so doing, the Court concluded that Nardone demonstrated an intractable unwillingness to consent to the official request that he submit to a chemical test of his blood.

This conduct constituted a refusal under the Implied Consent Law because Nardone possessed no right to alternative testing as he claimed.

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