Got A Warrant?

by Paul Aaroe

U.S. Supreme Court Wreaks Havoc on Pennsylvania Drunk Driving Law

On June 23, 2016, the United States Supreme Court made a landmark decision holding that, in general, police or states cannot punish a refusal criminally to give blood in DUI cases without first obtaining a warrant. In that ruling, the Supreme Court had three defendants appeal their convictions. The first defendant argued that it is unconstitutional to punish a refusal to give a breath test. The Supreme Court disagreed and held that a breath test is not invasive, keeps no evidence and therefore a warrant is not required. The second defendant argued the same for a blood test. In that case, the Supreme Court agreed and ruled in favor of the defendant. In summary, the Supreme Court stated that because the blood test is invasive, keeps evidence such as health evidence and DNA evidence; the police must first obtain a warrant or else the states cannot criminally punish the refusal. This decision was based upon the Fourth Amendment’s prohibition against unreasonable searches and seizures. The argument in favor of the police was that the evidence of blood alcohol content is dissipating quickly and therefore exigent circumstances permitted taking the blood without a warrant. The Supreme Court disagreed.

The third defendant, under the threat of criminal prosecution, if he refused the blood test, consented to the blood draw. He argued that that consent was not voluntary but coerced due to the threat of criminal prosecution if he refused. The Supreme Court agreed that his consent could be involuntary and therefore remanded the case for a hearing on that basis. How one’s consent to give blood in that circumstance could be anything but coerced is dubious, but it could be possible that a defendant gave the blood because he likes doing so…

Pennsylvania punishes refusals to give blood in DUI cases by either enhancing the mandatory minimum penalties and/or the grading and maximum penalties of the offense. As an example, a first-time offender is subject to a mandatory minimum three days in jail and a 12-month license suspension with a refusal, but would only be required to have six months of probation and a $300 fine if he was merely generally impaired by alcohol. A second offender would suffer a mandatory minimum of 90 days in jail and a maximum of five years for a refusal (or a BAC over .16), but a person with a second offense general impairment would only suffer only five days in jail and a maximum six months. A third offender with a refusal (or a BAC over .16), would have a mandatory minimum one year in jail, but without the enhancement only ten days.

Initially, Pennsylvania district attorneys were all over the board on whether or not Pennsylvania’s law was controlled by this Supreme Court decision. It has become universally accepted, after several motions being filed in various counties by the undersigned and other attorneys, that Pennsylvania’s law is unconstitutional because it punishes people who refuse the blood test more severely than otherwise would be punished. Therefore, in most cases, individuals who were charged with the enhancement of the higher tiers were being offered lower tiers and lesser penalties than what the law provided under the refusal provision.

Soon after the Supreme Court’s decision, PennDOT amended the form which is read to DUI defendants prior to requesting their blood. They took out the language in that form which threatened the enhanced criminal penalties. Two questions arise. One, does this cure the unconstitutionality and allow the punishment for the refusal or make a consent voluntary? It is this writer’s opinion that since the law is still in effect and people are presumed to know the law, the fact that they are not told of the enhancements at the time of the blood draw is inconsequential. They still are being coerced into giving the blood if they are aware of the enhanced penalties. (And it is still in the PA driver’s manual).

Second, does the change in the form create a problem on the license suspension for the refusal which is administratively given? The Supreme Court indicated that its decision only dealt with the criminal penalties and therefore any administrative suspension of a driver’s license was not affected by their decision. Pennsylvania law, however, requires that the form that is read to the defendants indicate that they will be punished more severely under the law if they refuse the test! Since the form does not comply with the law, it may be a fatal flaw in the administrative license suspension process.

In summary, in order for high tier alcohol DUI’s to be enforced in Pennsylvania, the following has to happen for Pennsylvania to comply with the Birchfield decision: 1. The Police must get a warrant before requesting blood; 2. they can do breath testing, or 3. the law must be changed. Absent this happening, defendants cannot be punished based on a refusal to give blood or due to the results of a blood test.

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