PA Roadside Breath Test vs DUI Test | Nicholas A. Frisk III

Last updated October 4, 2026.

Many people who are arrested for DUI say they "already took the breath test" at the side of the road. Usually they took the first of two very different tests. The difference decides what can be used against you in court and what happens to your license if you say no. For the broader picture, see the main DUI defense page.

How do the two tests fit into a DUI stop in Lawrence County?

Both tests happen early in the case, but on opposite sides of the arrest:

The stop. The officer looks for signs of drinking. What an officer may and may not do at that point is covered in your rights during a traffic stop and vehicle search.
The handheld test. With reasonable suspicion of alcohol, the officer may require a preliminary breath test before any arrest (75 Pa.C.S. 1547(k)).
The arrest and the warnings. After a DUI arrest, the officer asks for a chemical test and must first warn you that a refusal suspends your license and that refusing a breath test exposes you to the highest-tier penalties if convicted (1547(b)(2)).
The chemical test. A breath test on an approved instrument after at least 20 minutes of observation, or a blood sample tested by a licensed laboratory (1547(c); 67 Pa. Code 77.24(a)).
Release and the complaint. For a DUI graded no higher than a first-degree misdemeanor, the officer releases you if you pose no immediate danger and are expected to appear; the complaint must be filed within 5 days, and a summons follows (Pa.R.Crim.P. 519(B)). For Ellwood City and nearby townships it goes to the office described in what to expect at the Ellwood City district court.
The preliminary hearing. The summons sets a date at least 20 days after mailing unless an earlier one is agreed (Rule 510(A)). Every Lawrence County preliminary hearing is at Central Court, 202 Milton Street, New Castle, on Tuesdays, Wednesdays and Thursdays at 9:30 a.m., as explained in what happens at a preliminary hearing in Lawrence County.
The PennDOT track. A chemical test refusal leads PennDOT to suspend the license on the officer's notice, apart from the criminal case (1547(b)(1)). The appeal is due within 30 days of the notice's mailing date, in the county where the arrest was made (42 Pa.C.S. 5571(b), 933(a)(1)(ii)): here, the Court of Common Pleas at 430 Court Street, New Castle.

The full criminal path is laid out in what happens after a DUI arrest in Lawrence County.

What is the roadside breath test?

It is what the Vehicle Code calls a "preliminary breath test," and it has its own subsection, 1547(k). An officer who has "reasonable suspicion" that a driver is under the influence of alcohol may require the driver to blow into a device approved by the Department of Health for that purpose before any arrest. The statute is direct about its role: "The sole purpose of this preliminary breath test is to assist the officer in determining whether or not the person should be placed under arrest."

Two more sentences in 1547(k) matter. "No person has any right to expect or demand a preliminary breath test," so a driver cannot insist on one. And "refusal to submit to the test shall not be considered for purposes of subsections (b) and (e)," which are the subsections that impose the refusal suspension and allow a refusal to be used as evidence.

What is the chemical test?

The chemical test is the one the implied consent law is about. Any person who drives in Pennsylvania "shall be deemed to have given consent to one or more chemical tests of breath or blood" when a police officer has reasonable grounds to believe the person was driving under the influence (1547(a)). It comes after an arrest, and its result is the number the prosecution relies on to prove the tier of the DUI.

The statute controls how it is done. Breath tests must be performed on devices approved by the Department of Health, by an operator trained in an approved program, on a device calibrated and tested for accuracy (1547(c)(1)). Blood tests performed in Pennsylvania must be done by a clinical laboratory licensed and approved by the Department of Health or by a State Police criminal laboratory (1547(c)(2)). Most alcohol tiers are defined by the level "within two hours" after driving (3802(a)(2), (b), (c)), and a later result can be used only if the Commonwealth shows good cause for the delay and that you did not drink or use a drug between the arrest and the test (3802(g)).

Roadside preliminary breath test compared with the chemical test (75 Pa.C.S. 1547)
	Preliminary breath test	Chemical test
When	Before an arrest	After an arrest
What the officer needs	Reasonable suspicion of alcohol	Reasonable grounds to believe the person was driving under the influence
What it is for	Only to help decide whether to arrest	Evidence of the alcohol or drug level
Breath or blood	Breath, on a Department of Health approved device	Breath or blood
Refusal suspension	No (1547(k))	Yes: 12 months, or 18 months with a prior (1547(b)(1))
Refusal used in court	No (1547(k))	Yes, along with the circumstances (1547(e))

How is the breath test at the station supposed to be done?

The breath testing regulations in Title 67 of the Pennsylvania Code fill in what the statute leaves out. Because the chemical result sets the tier, these are among the first things to check in a breath case:

A 20-minute observation. An officer or certified operator must watch you for at least 20 consecutive minutes before the first test, with no fluids, eating, smoking or vomiting in that time (67 Pa. Code 77.24(a)).
Two samples, then a check. Two consecutive breath tests, then a simulator test with a solution designed to read .10% (77.24(b)).
The lower number counts. The lower of the two breath results is the one used for prosecution, and if the two differ by .02 or more, both are disregarded (77.24(b)).
Maintenance records. The instrument must have passed an accuracy inspection within 30 days before your test and a calibration within one year (77.25(a), 77.26(a)). A certificate or log of those checks is presumptive evidence that the device was accurate (75 Pa.C.S. 1547(c)(1)), so the records are worth reading.

What happens if I refuse the chemical test?

Three things, each written into the statute. PennDOT suspends the license on the officer's notice, for 12 months, or 18 months if the license was suspended for a refusal before or the person was previously sentenced for DUI (1547(b)(1)). Getting the license back requires a restoration fee, set in the statute at $500, then $1,000 and $2,000 for later refusal suspensions (1547(b.2)). And the refusal can be introduced at trial, though "no presumptions shall arise from this evidence" (1547(e)).

The refusal is not a separate crime; 1547(b) is titled "Civil penalties for refusal." But a general impairment DUI where the driver refused breath testing, or blood testing under a valid search warrant, is sentenced at the highest tier, the same as a 0.16% reading (3804(c)), and graded the same way (3803(b)(2), (4)).

What refusing the chemical test can cost on a first DUI arrest
Consequence	What the law or PennDOT says
Refusal suspension	12 months; 18 months after a prior refusal suspension or DUI sentence (1547(b)(1))
If found not guilty	PennDOT's Driver's Manual says the one-year refusal suspension still applies
Restoration fee	$500, $1,000 or $2,000 under 1547(b.2); the Driver's Manual currently lists $653, $1,309 and $2,616, plus the regular restoration fee
Sentence if convicted of general impairment	At least 72 consecutive hours in jail and a $1,000 to $5,000 fine (3804(c)(1))
Conviction suspension	12 months (3804(e)(2)(i)); the Driver's Manual says the refusal suspension is added to it
Ignition interlock	One year of interlock to restore driving; a limited license with an interlock after 6 months of a 12-month refusal suspension (PennDOT eligibility chart)

Because 1547(b)(2) makes the warning the officer's duty, what was said, and when, matters. The suspension can be challenged as explained in appealing a PennDOT license suspension.

What changes the answer?

Which test you refused. Declining the handheld device does not count for the refusal suspension or as evidence (1547(k)); declining the chemical test after the warnings does (1547(b), (e)).
Breath or blood. The enhanced penalties attach to refusing breath, or blood under a valid search warrant, court order or other constitutional basis (3803(b)(2); 1547(b.3)).
Your history. A prior refusal suspension or DUI sentence makes the refusal suspension 18 months (1547(b)(1)(ii)), and a new conviction is sentenced under the rules in what happens on a second DUI in Pennsylvania.
Your age. Under 21, the limit is 0.02% (3802(e)), sentenced at the high-rate level (3804(b)). The same night can bring a summary citation under 18 Pa.C.S. 6308, covered in what happens after an underage drinking citation.
The vehicle. A commercial vehicle has a 0.04% limit and a school bus 0.02% (3802(f)). The handheld test in 1547(k) speaks of a "motor vehicle," the chemical test in 1547(a) of any "vehicle," a difference that matters in a DUI on an ATV, snowmobile or bicycle.
Drugs. The roadside device is for alcohol. A drug case rests on blood, with minimum levels set by the Department of Health for Schedule I and nonprescribed Schedule II or III drugs (1547(c)(4)), as explained in DUI for prescription pills or medical marijuana.

Can I get my own test, or see the result?

Yes to both. You may have a physician of your own choosing give an additional breath or blood test, and that result is admissible too, but the officer's test will not be delayed while you arrange it (1547(h)). On request, the results of any chemical test must be made available to you or your lawyer (1547(g)). The cost of the test, including drawing blood, falls on a driver who is convicted or placed into a program such as ARD, and on the police agency if the driver is found not guilty or the charges are dismissed or withdrawn (1547(g.1)).

What about blood tests and warrants?

The Supreme Court of the United States has held that the Fourth Amendment permits warrantless breath tests incident to a drunk driving arrest, but not warrantless blood tests (Birchfield v. North Dakota, 579 U.S. 438 (2016)). Pennsylvania's statute ties the enhanced penalties to refusing breath testing, or blood testing "pursuant to a valid search warrant, court order or any other basis permissible by the Constitution" (3803(b)(2); 1547(b.3)). How a blood draw was authorized is often one of the first things to check, as explained in when police need a warrant for a DUI blood draw.

A worked example

For example, take a hypothetical driver (not a real case) with no prior DUI, stopped in Ellwood City shortly before midnight. He declines the handheld device, which under 1547(k) brings no refusal suspension. The officer arrests him on what else was observed and asks for a breath test at the station.

After 20 minutes of observation, about an hour after driving, he gives two samples: 0.094% and 0.091%. They are less than .02 apart, so the lower one, 0.091%, is used (67 Pa. Code 77.24(b)). That is general impairment under 3802(a)(2). For a first offense, the statute calls for six months' probation, a $300 fine, alcohol highway safety school and any treatment ordered (3804(a)(1)), with no license suspension at this tier and no prior offense (3804(e)(2)(iii)).

Now change one fact: at the station, after the warnings, he refuses. PennDOT suspends his license for 12 months (1547(b)(1)(i)). If he is convicted of general impairment under 3802(a)(1), the sentence moves to at least 72 consecutive hours and a $1,000 to $5,000 fine (3804(c)(1)), with a 12-month conviction suspension added (3804(e)(2)(i)) and a year of ignition interlock to restore driving under PennDOT's chart. The penalties for each tier are in the Pennsylvania DUI penalties chart.

Common mistakes with breath tests and refusals

Treating the roadside number as the case. The statute limits the handheld test to the arrest decision (1547(k)); the chemical result is what counts.
Expecting an acquittal to end the refusal suspension. PennDOT's Driver's Manual says a first refusal brings a one-year suspension even if the driver is found not guilty.
Waiting on the PennDOT letter. The 30 days to appeal run from the mailing date on the notice, not the day you open it.
Driving once the suspension starts. Driving while suspended for a refusal carries a $500 fine and 60 days in jail on a first conviction (1543(b)(1)(i)), as explained in driving during a DUI suspension.

What to do this week

Write down the times you remember: when you last drove, the handheld test, the arrest and the chemical test.
Keep every paper from the stop, including any form the officer read or asked you to sign.
Ask in writing for your chemical test results (1547(g)), and collect the records of any test you arranged yourself (1547(h)).
Look up the case on the UJS Portal and note the preliminary hearing date at Central Court.
Open every PennDOT letter the day it arrives and write down its mailing date.
Expect a CRN evaluation before sentencing or ARD (3816(a)), described in the CRN evaluation and alcohol highway safety school.

Frequently asked questions

Can the roadside breath test number be used against me in court?

The statute gives the handheld test one purpose: helping the officer decide whether to arrest (1547(k)). The tier of the DUI is proved with the chemical test taken after the arrest, under the rules in 1547(c).

Can I say no to the roadside test?

Declining it is not counted for the refusal suspension or as refusal evidence (1547(k)). The officer still decides from everything else observed whether to arrest you.

Can the officer ask for both a breath test and a blood test?

The implied consent law speaks of "one or more chemical tests of breath or blood" (1547(a)). A blood draw without consent raises the warrant questions above, because the Fourth Amendment treats it differently from a breath test.

What does it cost to get my license back after a refusal?

The statute sets the refusal restoration fee at $500 for a first refusal suspension, $1,000 for a second and $2,000 after that (1547(b.2)). PennDOT's Driver's Manual currently lists $653, $1,309 and $2,616, plus the regular restoration fee, so check the amount on your own restoration letter.

Can I drive with an interlock during a refusal suspension?

Under PennDOT's current chart, a first 12-month refusal suspension allows an ignition interlock limited license after 6 months served, and an 18-month one after 9 months. Act 36 of 2026 replaces that license with a single ignition interlock driver's license in November 2027. The wider picture is in what happens to your license after a DUI.

If you took, or refused, a breath or blood test after a DUI stop in Ellwood City, Lawrence County or Western Pennsylvania, I can go through how it was done and what it means for your case. You work directly with me, and the first consultation is always free and confidential.

Is the roadside breath test the same as the DUI chemical test in Pennsylvania?