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Most people are aware that if you are stopped due to suspicion of a DUI, the police can request that you submit to a breath test. It is not common knowledge, however, that under Pennsylvania DUI law, you are required to provide two breath samples, and the refusal to provide a second sample can result in suspension of your license. In Flaherty v. Commonwealth, the Commonwealth Court of Pennsylvania held that police are not required to provide licensees with a form stating they are required to submit to a second test, and that verbally advising drivers of the requirement was sufficient.

Facts of the Case

The suspect in Flaherty was involved in a single car accident. According to the police, when an officer approached the suspect’s vehicle he noticed an odor of alcohol coming from her breath. She stumbled while exiting her vehicle but was not slurring her speech. The officer requested that the suspect submit to a breath test and was advised if she did not submit to a breath test, her license would be suspended for one year. The suspect was then transported to a second location for the breath test, where she was read Form DL-26A, which again warned if she refused to submit to the breath test her license would be suspended for at least one year. The suspect was then verbally advised she would have to provide two breath samples. The suspect stated she would submit to the test, and was directed how to take the test.

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Under Pennsylvania DUI law, if you are convicted of a second DUI offense within a certain time period, you will likely face greater penalties than if you had no prior DUI convictions. Recent changes in section 3806(b), the provision of the code that determines what constitutes a second offense, modified how time is to be calculated between offenses. In Becker v. Commonwealth, the Commonwealth Court of Pennsylvania held that it is clear the new provision was to be applied retroactively in DUI offenses committed after the amendment of the provision.

In Becker, defendant was charged with a DUI in December 2010 and convicted in October 2012. The provision of the code he was convicted of violating, section 3802(a)(1), prohibits an individual from driving after consuming alcohol to the point where he or she is incapable of driving safely. Defendant’s sentencing included a one-year suspension of his license, which he did not appeal. His license was suspended from December 11, 2012 until December 17, 2013. Defendant was charged with a second DUI for a violation of section 3802(a)(1) on November 6, 2011. He was convicted of his second DUI in August 2015 and his license was suspended under section 3806(b), which was amended in October 2014 to provide that any conviction within ten years of sentencing on a prior conviction constitutes a second offense. Defendant appealed his license suspension, arguing the prior version of section 3806(b), which stated a conviction within ten years of a prior violation constituted a second offense, should apply, as it was the provision in effect during both DUI violations. As defendant’s second violation occurred prior to his conviction for his first offense, he argued it did not constitute a second offense. The trial court denied defendant’s appeal, stating the new section 3806(b) applied. As defendant’s second conviction was after the date of the amendment of section 3806(b), the court found it the new section 3806(b) applied. Defendant then appealed to the Commonwealth court.

The issue on appeal was whether defendant fell within the exception to suspension, which provides that a defendant will not face a license suspension where they are convicted of an ungraded misdemeanor and have no prior offense. To fall under the exception, the defendant must be convicted of violating section 3802(a)(1), must be subject to penalties as set forth in section 3804(a), and must have no prior offenses. While the parties agreed defendant met the first two elements, they did not agree as to whether he had a prior offense. Defendant argued the trial court erred in retroactively applying the new section 3806(b) rather than applying the old section. The court disagreed, noting that new section 3806(b) clearly stated it applied to anyone sentenced after December 26, 2014. As defendant was not sentenced until August 2015, the new section 3806(b) was applicable.

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The United States Supreme Court’s decision in Birchfield v. North Dakota, is an important ruling that permanently altered the manner in which DUI cases are prosecuted and what penalties may be imposed, throughout the country. In Pennsylvania, Birchfield continues to cause confusion, however, both among the prosecution and Pennsylvania DUI attorneys, as to what warnings are required and what evidence may be introduced against defendants. In Turner v. Commonwealth, the court clarified that a license suspension could be imposed for failure to submit to a blood test, regardless of the fact the Defendant was not given a warning regarding increased criminal penalties.

In Turner, a police officer noticed Defendant’s vehicle stopped on the side of the highway, with Defendant asleep in the driver’s seat. The officer asked Defendant to submit to field sobriety testing, which Defendant was unable to complete. Defendant admitted to drinking alcohol, but refused to submit to a breath test. He was arrested due to suspicion of DUI and transported to a facility to undergo a blood test. Defendant was warned of the consequences of refusing to undergo a blood test, but was not warned that if he refused the test he would face increased criminal penalties. Defendant refused the test and was subsequently notified his license was suspended for one year. Defendant appealed, arguing the suspension was improper because the police officer did not warn him of increased criminal penalties for refusal of the blood test. Following a hearing, Defendant’s suspension was affirmed and he appealed to the Commonwealth court, which also affirmed the suspension.

The Commonwealth court noted the same issue was ruled upon in a previous case and held it was bound by that ruling. The Defendant argued the police officer was obligated to warn of increased criminal penalties even though they were constitutionally invalid, because such warnings were required by the motor vehicle code. The court stated there was no reason for the police officer to warn of increased criminal penalties for refusing to submit to a blood test, when said penalties were no longer permitted under the Birchfield ruling, and deemed the portion of the code requiring such warnings severable from the remainder of the code. The court went on to say that the Birchfield ruling did not stop the imposition of civil penalties for refusing a blood test, and clarified that a license suspension was a civil penalty and not a criminal penalty. As such, the failure to warn of criminal penalties did not invalidate a civil penalty in the form of a license suspension.

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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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