BIRCHFIELD DECISION CHANGES PA DUI LAW

On June 23, 2016, the United States Supreme Court ruled that the Fourth Amendment of the US Constitution permits warrantless breath tests incident to lawful arrests for drunk driving but not warrantless blood tests. In the Birchfield v. North Dakota decision, the Supreme Court considered three different cases from North Dakota and Minnesota:

1. Refusal of Blood Test - Birchfield: After his DUI arrest, Birchfield refused blood testing and was charged with a misdemeanor offense under North Dakota law for refusing a blood test. He entered a conditional guilty plea, later arguing that the 4th Amendment prohibited North Dakota from making a test refusal a crime.

2. Refusal of Breath Test - Bernard: After his DUI arrest, Bernard was notified by police that refusing a breath test was a crime. After refusing to submit to a breath test, Bernard was charged with a 1st degree misdemeanor under Minnesota law for refusing the test. Bernard argued that warrantless breath tests are impermissible under the 4th Amendment.

3. Consent to Breath Test Coerced by Threat of Criminal Penalties - Beylund: After his DUI arrest, Beylund consented to a blood draw after being informed that he was required to submit to testing and after being threatened with enhanced criminal penalties by the arresting officer. Beylund argued that his consent to submit to a blood draw was coerced by the officer's threat of enhanced criminal penalties.

IMPACT ON BREATHALYZER TESTING

In its decision, the Supreme Court held that warrantless breath tests constitute a permissible search incident to the arrest of a DUI suspect. For the search to be permissible, the police must have had probable cause to arrest the particular offender, or in other words, must establish that it is more likely than not that the person arrested committed a DUI.

In deciding that a warrant was not required, the Supreme Court found that process of obtaining a breath test is a minimal intrusion, as breathing is a natural process, nobody "owns" the air in their lungs, the air sample is not capable of being retained by police, and testing is typically conducted in a private setting. Ultimately, the Supreme Court held that the warrantless breath test of Bernard was lawful, and that Bernard had no right to refuse it.

IMPACT ON BLOOD TESTING

In focusing on the enhanced intrusion on the person, the Supreme Court ruled that a warrant is required when requesting a blood test after a DUI arrest. Unlike minimally intrusive breath tests, blood is a part of the human body, people don't shed blood like they expel air from their lungs, and a sample can only be extracted only through piercing the skin with a needle. Unlike air samples which cannot be retained, blood samples can be preserved by law enforcement, and information aside from one's BAC can be obtained from the sample.

As such, the Court held that Birchfield simply refused an unlawful search, and couldn't be punished for this.

CONSENTING TO A BLOOD TEST?

When a person provides valid consent to a search, a warrant is not needed. However, a driver may not be deemed to have consented to a blood draw when the officer threatens enhanced criminal penalties, and tells the driver he or she is required to submit to a warrantless blood draw under a state's implied consent law.

In Beylund's case, the Supreme Court held that North Dakota had to re-evaluate whether or not his consent was valid, as it was based upon the erroneous warning by the police officer that he was required to submit to a warrantless blood draw. The case was remanded to state court to determine whether or not consent was valid in light of the officer's inaccurate explanation.

LICENSE SUSPENSIONS FOR REFUSING A BLOOD TEST

The suspension of your license is civil penalty imposed by PennDOT, and not a criminal penalty. While some attorneys have challenged license suspensions based upon this decision, it does not appear that this case prevents PennDOT from enforcing license suspensions for a driver's refusal to submit to a blood or breath test.

CURRENT IMPACT OF BIRCHFIELD ON PA DUI CASES

Unlike North Dakota who made it a separate crime to refuse testing, Pennsylvania does not make a test refusal a separate criminal offense. However, PA does impose enhanced criminal penalties for refusing a blood or breath test.

In Pennsylvania, the implied consent laws will no longer allow police to draw a person's blood simply because of a DUI related arrest. Police will either need to obtain a warrant, or obtain your valid consent to submit to testing.

If you are facing a DUI charge and have submitted to or refused a blood draw, you should contact a local DUI defense attorney who practices in your county for further guidance. However, the following changes have occurred recently in many Western Pennsylvania jurisdictions:

1. Impact on Non-ARD DUI Cases: For non-ARD cases, many prosecutors are withdrawing highest tier (.16% and above BAC), high tier (.10-.159% BAC), and lowest tier (.08-.099% BAC) charges, along with enhanced DUI refusal penalties, when the driver was threatened with enhanced criminal penalties for refusing a blood draw. However, other DA's offices are not withdrawing charges, requiring your lawyer to file an Omnibus Pretrial Motion to seek a dismissal of enhanced DUI charges based upon a refusal or improperly coerced blood draw.

2. Impact on ARD DUI Cases: In warrantless blood draw and refusal cases, most prosecutors are allowing drivers to enter into the ARD program on general impairment charges, which carries no license suspension. However in some counties, prosecutors are not reducing high and highest tier offenses in connection with ARD offers. Keep in mind that if you have refused testing, you are still facing a 12-month license suspension for refusal, as this is considered a civil penalty.

3. Continued Prosecution of General Impairment & DUI Accident Cases: Prosecutors will continue to prosecute DUI - General Impairment (lowest tier) and DUI - General Impairment with Accident (high tier) offenses. These charges can be prosecuted without the use of improperly collected BAC evidence, because they simply require proof that you drank alcohol to a degree that rendered you incapable of safe driving.

4. Police Will Try To Obtain Consent by Changing Test Warnings: District Attorneys' Offices have now advised police officers to revise the implied consent warnings by removing all reference to increased criminal penalties on the DL-26 form. Prosecutors are hoping that by removing the criminal penalty references, that drivers will be unable to argue that their consent to a blood draw was improperly coerced. This legal issue remains undecided.

5. Drug DUI Cases: As there is no breath test for Drug DUI cases, blood will need to be drawn to determine if there is a controlled substance and/or metabolite in your system. Without blood results, police will need to establish that you drove under the influence of a drug or combination of drugs which rendered you incapable of safe driving. In proving this, police may rely upon Drug Recognition Expert testimony, but drivers are infrequently examined by DREs after arrest. Alternatively, prosecutors will have to rely upon the testimony of police officers who lack the expert training of DREs, which may make it easier to earn an acquittal.

6. Greater Reliance on Breath Tests: Police will either need to work in conjunction with magistrates to expedite the processing of search warrants, or will simply shift to breath testing instead. Breath testing is much more vulnerable to attack at trial than is blood testing.

To read the Birchfield decision, click on this link.