On June 23, 2016, the United States Supreme Court held in Birchfield v. North Dakota, 579 U.S. __ (2016), that the warrantless search and seizure of blood in DUI cases is unconstitutional. Thus, states could not criminalize DUI blood draw refusals. Across the country, many state statutes were struck down and unenforceable – but how does the Birchfield ruling affect Pennsylvania?
In Pennsylvania, DUI sentences are subject to tiers. Tiers are determined by many factors, including blood alcohol content (BAC), drug involvement, injuries and accidents, vehicle types, etc. The lowest tier, such as when no BAC is available, has the least serious penalties. On the other hand, the highest tier such as BAC of .16% or above, results in the harshest penalties.
Logically, if a person refused to provide a sample of his or her blood to test for alcohol intoxication, there would be no BAC available, and he or she would ordinarily be subject to the lowest tier. For sentencing purposes, this usually means no license suspension, no jail time and a maximum of six months of probation for a first offense DUI.
Pennsylvania’s Implied Consent Law for Refusal to Submit to a Blood Test
Unlike North Dakota, Pennsylvania does not have a wholly separate statute that criminalizes DUI blood draw refusals. Pennsylvania utilizes an inadvertent method in order to punish those who refuse to provide a blood sample. Under Pennsylvania’s Implied Consent Law, 75 Pa.C.S. §1547, anyone who refuses to provide a blood sample and is found guilty of DUI is subject to the highest tier punishment.
Before Birchfield, and upon arrest for suspected DUI, drivers in Pennsylvania were read the O’Connell warnings that if failed to submit to chemical testing they were subject to enhanced criminal penalties – including jail time. After the Birchfield decision, the Pennsylvania Department of Transportation (PennDOT) amended its form to remove the criminal enhancement penalties. However, the Pennsylvania Legislature has not amended the applicable statute.
As the law currently applies pursuant to Birchfield, police must now obtain consent from the suspected DUI driver for a blood sample or get a warrant. Considering drivers are still subject to an additional one year license suspension for refusing to provide a sample, as a civil penalty under the implied consent law, many drivers decide to consent. Even if consent is given, a driver’s consent must be voluntary and not based “on the pain of committing a criminal offense” as the Supreme Court noted.
Is 75 Pa.C.S. 1547 Constitutional After Birchfield?
The law remains undecided on the status and effect of 75 Pa.C.S. 1547’s criminal enhancement and legality, but the issue will certainly be considered by the Pennsylvania appellate courts sometime in the future.
Conclusion: Officers Will Be Getting More Warrants
If you have questions about a DUI case involving a refusal to submit to blood testing in West Chester in Chester County, or in Media in Delaware County, PA, then call an experienced criminal defense attorney at the Skinner Law Firm. We are experienced in filing and litigating motions to suppress blood test results in DUI related cases including felony DUI cases involving prior convictions, serious bodily injury or death. Call us today to discuss your case.
Read more about Forced Blood draw cases and the constitutionality of 75 Pa.C.S. 1547 in Pennsylvania.