The Pennsylvania Superior Court recently issued a decision that significantly changes DUI enforcement. In Commonwealth v. Barker (Pa. Super. July 10, 2013), the Superior Court reversed a DUI conviction on the grounds that the arresting officer refused to grant the defendant’s request for a urine test rather than a blood test. The specific language of the Superior Court in Barker was, “Thus, where the motorist requests alternative practicable testing and offers a facially valid reason for his request, we discern no basis in the statutory language for the officer to refuse the request.” This result completely changes the well-settled legal proposition that it is up to the arresting officer to determine what type of chemical test to use.
In Barker, the defendant was arrested for DUI based on the arresting officer’s observations that the defendant was under the influence of controlled substances. The defendant was taken to a hospital for a blood test. He refused to take the blood test, claiming that he was a “brittle diabetic” and that a previous needle shot received at the same hospital had resulted in an infection. The defendant instead requested a urine test. The officer refused to give the defendant the option of the alternative test. The defendant was convicted at trial. On appeal, the Superior Court reversed the conviction because the arresting officer refused to honor the defendant’s request for a chemical test other than a blood test.