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The United States Supreme Court’s ruling in Birchfield v. North Dakota drastically changed the prosecution of DUI cases throughout the country. In Birchfield, the Court held that a DUI defendant cannot be subject to warrantless blood tests or face increased criminal penalties for refusing to submit to blood testing. The Birchfield verdict immediately affected the prosecution of DUI cases filed after the decision was rendered. In many states, however, it remains unclear whether Birchfield should be applied retroactively to cases that were pending when it was decided. The Supreme Court of Pennsylvania recently granted an appeal in Commonwealth v. Hays on the sole issue of whether Birchfield should apply to Pennsylvania DUI cases that were not final when the decision was rendered.In Commonwealth v. Hays, the defendant was detained due to a traffic violation on April 11, 2014. When the police officer approached the vehicle, he observed a strong odor of alcohol coming from the defendant. As a result, he requested that the defendant perform field sobriety testing. The defendant failed the field sobriety tests and was transported to a facility for further testing. At the facility, he was read the standard warning, which stated, in part, if he refused to submit to a blood test, his license would be suspended for at least one year, and he would face other additional penalties. Following the warning, the defendant submitted to the blood test, which indicated his blood alcohol level was .192. He was charged with DUI and DUI at the highest rate of alcohol. On August 25, 2016, following a jury trial, the defendant was convicted on both charges and sentenced to five to six days in jail.

The defendant then filed a post-trial motion, arguing pursuant to the United State Supreme Court’s ruling in Birchfield, which was decided the day after his jury trial, his consent to the blood draw was not involuntary, and his conviction should be vacated. Specifically, the defendant argued that he only consented to the blood test due to the fear of increased criminal penalties, and therefore, his consent was invalid. The Commonwealth argued the defendant was not entitled to post-conviction relief because he did not preserve the issue before or at trial. The trial court granted the defendant’s motion and ordered a new trial. The Commonwealth appealed.

On appeal, the Superior Court of Pennsylvania vacated the trial court’s ruling, agreeing with the Commonwealth that since the defendant did not raise the argument that his blood testing was involuntary prior to or during his trial, he waived the right to assert it as a defense. The court noted that Pennsylvania case law clearly holds that a defendant is not entitled to the retroactive application of a new constitutional rule, unless he or she first raises the issue during trial. Since the defendant did not raise the issue of involuntary consent until after his trial, the court ruled he was not entitled to retroactive application. The defendant subsequently appealed, and the case is before the Pennsylvania Supreme Court on the issue of whether Birchfield should be applied retroactively. Whatever ruling the court issues, it is clear it will have a significant impact on Pennsylvania DUI cases that were pending when Birchfield was decided, and it may be persuasive in other jurisdictions ruling on the same issue.

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While it is common knowledge you can be charged with DUI if a police officer directly observes you driving a vehicle under the influence of alcohol, many people are unaware you can be charged with DUI even if the arresting officer did not actually witness you operating a vehicle. In Yencha v. Commonwealth, et al., the court clarified the issue of what constitutes sufficient evidence for charging an individual of driving under the influence of alcohol within the framework of Pennsylvania DUI law.

In Yencha, an officer responded to a call regarding a hit and run accident. When he arrived at the scene, the victim and a witness to the accident both described the vehicle involved in the hit and run and the man driving the vehicle. The witness also provided the license plate number of the vehicle. The officer ran the license plate number and subsequently found the vehicle parked outside of the suspect’s residence. The officer noted the vehicle had front-end damage. The officer spoke with the suspect, who reported his vehicle had been damaged in a previous accident and denied any knowledge of the hit and run accident. The officer noted the suspect had glassy eyes, slurred speech and an odor of alcohol on his breath and requested the suspect undergo a field sobriety test. The suspect refused to undergo any testing. The officer arrested the suspect for suspicion of DUI and being involved in a hit and run. The suspect was transported to the police station, where he again refused to submit to a breath test.

Following a trial, the Department of Transportation (DOT) imposed a one year suspension on the suspect’s license for failure to submit to the breath test. The suspect appealed, arguing the officer did not have reasonable grounds to charge the suspect with DUI and therefore the suspension for failure to submit to a breath test was improper. The trial court sustained the suspect’s appeal and reversed the suspension. The DOT appealed to the Commonwealth Court of Pennsylvania, arguing the trial court erred when it held the officer did not have reasonable grounds to believe the suspect was driving under the influence of alcohol, and the suspension should be reinstated.

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Under Pennsylvania law, if you are detained due to suspicion of DUI and refuse to submit to chemical testing, the Department of Transportation may suspend your license for one year. While the police are required to warn a suspect of the consequences of refusing to take a blood or breath test, they do not have to inform a suspect of what behavior is considered a refusal. The Commonwealth Court of Pennsylvania recently clarified what constitutes refusal to submit to chemical testing under Pennsylvania DUI law and held that conduct other than an explicit refusal may be considered a refusal to submit to testing.  

In Lukach v. Commonwealth et al., the suspect’s operating privileges were suspended for one year due to her refusal to submit to chemical testing following her arrest for suspicion of DUI. She appealed the suspension, arguing the trial court erroneously found she refused to submit to chemical testing. On appeal, the court affirmed the suspension.

The suspect was stopped for committing a traffic violation. She admitted consuming alcohol prior to driving, and failed a field sobriety test and a breath test. She was arrested for DUI and administered implied consent warnings, after which the arresting officer requested that the suspect submit to a blood test to accurately assess her blood alcohol content. The suspect initially agreed to submit to the test, but then requested to speak to an attorney and her sister prior to submitting to the test. She then asked for time to reconsider taking the blood test. The officer deemed the suspect’s behavior as a refusal to submit to the blood test.  As such, the Department of Transportation received notification that the suspect refused to submit to chemical testing and her license was suspended for one year.

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Courts throughout the country continue to feel the repercussions of the Supreme Court’s recent ruling in Birchfield v. North Dakota, as they try to navigate the effects of the decision on current DUI case law and statutes. Birchfield held, in part, that increased criminal penalties could not be imposed on DUI suspects who refused to submit to a warrantless blood test. Currently, if a Pennsylvania DUI suspect refuses to take a blood test to determine his or her blood alcohol level, the prosecution can introduce the suspect’s denial as evidence of awareness of guilt at trial, under the implied consent law of the Pennsylvania motor vehicle code. Recently, the Pennsylvania Supreme Court granted an appeal on the issue of whether the terms of the implied consent law of the motor vehicle code violate the Pennsylvania Constitution and the Fourth Amendment of the United States Constitution, in light of the holding set forth in Birchfield.In Commonwealth v. Bell, police stopped the suspect due to his failure to have adequately illuminated headlights. When the police approached the vehicle, they noticed an odor of alcohol on the suspect’s breath, and that his eyes were bloodshot. Upon questioning, the suspect admitted he drank four beers. The suspect was then administered a field sobriety test, which he failed. Additionally, he submitted to a Breathalyzer test, which revealed a blood alcohol concentration of .127%. He was arrested for DUI and transported to a hospital for blood testing; however, he refused to submit to a blood test after he was read the chemical testing warnings.

The suspect, who was charged with a DUI, filed a pre-trial motion to dismiss the charge on the grounds he had a constitutional right to refuse to undergo the blood test. As such, he argued his refusal to submit to the test should be suppressed from evidence.  The court denied the suspect’s motion and allowed the prosecution to introduce evidence of the suspect’s refusal of the blood test, and the suspect was subsequently convicted of DUI.

The suspect filed a motion for reconsideration of his motion to dismiss, averring that the Birchfield decision barred implied consent laws from stating that motorists consent to criminal penalties for failing to submit to a blood test, and therefore, testimony regarding his refusal should have been inadmissible. The trial court granted a new trial in which the prosecution was not allowed to introduce evidence of the suspect’s refusal to submit to a blood test, and the Commonwealth appealed.  While the suspect argued he had a constitution right to refuse the test and should not be subject to stricter penalties for exercising that right, the Commonwealth argued it was not unconstitutional to introduce the suspect’s refusal to submit to the blood test as evidence of guilt at trial.

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The Supreme Court’s holding in Birchfield v. North Dakota, continues to affect how Pennsylvania DUI cases are prosecuted. In Birchfield, the Supreme Court held that police officers could not subject DUI suspects to warrantless blood tests or impose increased criminal penalties for refusing a blood test. Before the Birchfield ruling, Pennsylvania DUI suspects were advised that they would face enhanced criminal penalties if they refused blood tests. Those warnings, which were known as the DL-26 form, were modified post-Birchfield to remove language warning of increased criminal penalties. The new form, DL-26B, however, warns of the possibility of increased civil penalties for failing to submit to a blood test, which has led to confusion among DUI suspects as to what penalties may be imposed for failing to submit to the test.

Recently, in Commonwealth v. Miller, the Superior Court of Pennsylvania held that police officers do not have an affirmative duty to advise a DUI suspect they will not face enhanced criminal charges if they refuse a blood test. As such, if a DUI suspect voluntarily consents to a blood alcohol concentration (BAC) test, the results of the test are admissible, regardless of the suspect’s belief that he will face more severe penalties if he refuses to submit to the test.

In Miller, the suspect was arrested under the suspicion of DUI and then read the revised DL-26B form, which no longer includes warnings of increased criminal penalties for failing to submit to a blood test. The suspect, who had previously been arrested for DUI and read the prior DL-26 form, believed he would received criminal penalties for failing to submit to the blood test and therefore consented to the test. At his trial, the suspect filed a motion to suppress evidence of his blood alcohol concentration test results, arguing his consent was invalid because, based on his prior experience, he believed he would face criminal penalties if he did not submit to the test. The trial court granted the suspect’s motion and the Commonwealth appealed. On appeal, the Superior Court of Pennsylvania held that the suspect’s subjective belief did not provide grounds for the suppression of the blood alcohol concentration test results.

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Many people mistakenly believe they must submit to a blood test if they are detained due to suspicion of DUI. While this used to be true, the Supreme Court’s decision in Birchfield v. North Dakota changed the legal landscape throughout the country with regards to the use of blood draws in the prosecution of DUI cases. The Birchfield holding has been applied by Pennsylvania courts in overturning DUI convictions based on the results of blood tests, where consent was improperly obtained prior to the test. If you are arrested for suspicion of DUI in Pennsylvania, it is important that you know your rights and protections under the law. If you did not knowingly and voluntarily consent to the administration of a blood test in your Pennsylvania DUI case, the prosecution may not be able to use the results of the blood test against you.

In a recent case ruled on by the Supreme Court of Pennsylvania, Commonwealth v. Evans, it was held that where an individual only consents to a blood test due to fear of criminal penalties which would be imposed for refusing the test, the consent is not valid. In Evans, Evans was arrested on suspicion of DUI and taken to a hospital for a blood alcohol test. Prior to the administration of the test, the arresting officer gave Evans an implied consent warning but advised him if he did not submit to a blood test he would face stiffer criminal penalties.

At his trial, Evans filed a motion to suppress the results of his blood test, arguing that he was coerced into allowing his blood to be drawn for the test due to the threat of more severe punishment. As Evans did not believe he voluntarily consented to the blood test, he argued it constituted an unreasonable search that violated his constitutional rights and the results of the test must be suppressed. The arresting officer testified that he requested Evans submit to a blood test at the time of his arrest, and advised Evans if he did not agree to the blood test his license would be suspended for a minimum of twelve months. Further, Evans was advised that if he had previous DUI convictions he would be subject to the same penalties as if he was convicted at the highest rate of alcohol. The officer stated that following the warning, Evans consented to the test. Evans testified that he could not recall much of the evening, other than being told he would not go to jail if he consented to the test.

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If you are convicted of a Pennsylvania DUI, the law affords you the right to an assessment of your level of dependency on alcohol and drugs before you are sentenced. If the court fails to provide you with an assessment, your sentence may be overturned. In one recent case, Commonwealth v. Taylor, the Supreme Court of Pennsylvania specifically held that the assessment is mandatory and cannot be waived  when it vacated a sentence issued without an assessment.

In Taylor, the defendant pleaded guilty to driving under the influence, which was his second DUI offense. Under the laws of Pennsylvania, a defendant who pleads guilty to or is convicted of a DUI offense must undergo an evaluation to establish the degree of his use of alcohol and drugs. Additionally, individuals like the defendant, who are convicted of two or more DUI offenses within ten years, are to undergo a complete assessment of their addiction to alcohol and drugs.

The assessment is to be done by the Department of Health, the county agency, or an individual licensed to administer drug and alcohol treatment programs. The purpose of the assessment is not only to determine the extent of a defendant’s dependency but also to provide recommendations regarding what level of care and monitoring are best suited for the defendant. If an assessment reveals that a defendant would benefit from further treatment, the statute directs the court to impose the minimum sentence statutorily provided for and a maximum sentence equal to the statutory maximum. The statute further provides that a defendant is eligible for parole following the end of their minimum sentence.

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In a recent Philadelphia DUI case, the Pennsylvania Superior Court vacated the appellant’s illegal probation revocation sentence and remanded for further proceedings.

In February 2008, the appellant was arrested in Philadelphia for suspicion of driving under the influence of marijuana. A subsequent blood test showed that his blood had traces of marijuana. Roughly eight months later, he was again arrested for suspicion of DUI. A subsequent blood test showed that his blood had traces of marijuana.

In April 2009, he appeared before the Philadelphia Municipal Court to plead guilty to both the February 26th and October 16th DUI offenses. He entered into a negotiated plea deal in which his February 26th DUI would be sentenced as a “first offense,” and his October 16th DUI would be sentenced as a “second offense.”

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In a recent Pennsylvania DUI case, the state intermediate court recently affirmed the appellant’s sentence imposed following her convictions of driving under the influence of a controlled substance, operating a vehicle without a valid inspection sticker, and operating a vehicle without evidence of emission inspection.

On June 28, 2016, a Pennsylvania trooper was on traffic enforcement duty in East Lampeter Township when he observed a red car with expired inspection stickers. When the car passed his location, the trooper made a U-turn to pursue the vehicle.

The trooper caught up with the car and initiated a traffic stop. He informed the driver, the appellant, that he had pulled her over for an inspection violation, and he requested her license, registration, and proof of insurance. According to the trooper, it took the appellant more time to gather her information than it would for an average person during a non-DUI vehicle stop, and the appellant had difficulty locating her license, even though it was visible in her wallet. The trooper also noticed that the appellant’s pupils were “extremely constricted,” her speech was slurred, and she exhibited delayed reactions. The trooper asked the appellant whether she had taken any kind of medication, and she replied that she was on Adderall and Metformin. The trooper then asked the appellant whether she had taken any narcotics, and she replied that she has a prescription for oxycodone to manage pain and that she had taken some the previous evening.

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In June 2016, the United States Supreme Court issued Birchfield v. North Dakota, which held that a DUI suspect may not be informed they are subject to increased punishment in the event of refusing a blood test. A Pennsylvania DUI defendant who was arrested after Birchfield, but before the General Assembly’s July 2017 amendment of the Criminal Code, appealed her license suspension for refusing to submit to chemical testing pursuant to Pennsylvania’s Implied Consent Law.

In June 2016, PennDOT created an amended DL 26B form in response to Birchfield. On July 20, 2017, the Pennsylvania governor approved 2017 Act 30, which amended Section 1547(b)(2) to remove language that requires an officer to give admonitions relating to enhanced criminal penalties for refusing a blood test.

Upon the defendant’s arrival at the central booking center, the officer requested that she submit to a chemical test of her blood and read her the new DL-26B form, thereby warning her that the Department would administratively suspend her driver’s license for at least 12 months for refusing to submit to a blood test. He did not advise her, however, that she would be subject to enhanced criminal penalties upon refusal. The defendant refused, and the Department issued the notice of suspension at issue. The defendant appealed to the trial court, which held a hearing, rejected the defendant’s argument, and upheld the suspension. Her timely appeal followed.

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