There has been a drastic change under Pennsylvania DUI law as a result of the Birchfield ruling and the implications on implied consent. This blog will address DUI implied consent law after Birchfield. Recently, the United States Supreme Court decided a Fourth Amendment case concerning refusal of blood testing after being pulled over for DUI. Birchfield v. North Dakota, 579 U.S. ____ (2016), DUI what's at stake? holds the government may not criminalize a driver's refusal to submit to a blood test without a warrant. The government still can criminalize a driver's refusal to provide a breath sample without a warrant if the officer has reasonable suspicion to believe a driver is under the influence.
This Birchfield opinion merged two North Dakota cases with a Minnesota case. In the first case, Mr. Birchfield got into an accident. While investigating the accident the officer on scene formed the opinion that Birchfield may have been driving under the influence. Defending DUI Cases After performing poorly on field sobriety tests, Mr. Birchfield consented to a preliminary breath test. The test showed a result of 0.25, which was over three times the legal limit. Mr. Birchfield was arrested and driven to the hospital. It was expected that blood would be drawn at the hospital to confirm the results of the breath test. At the hospital, Mr. Birchfield was read the implied consent advisory telling him refusing to submit to the test is a crime and that it would result in a license suspension. After hearing this consent advisory, Birchfield refused to submit to the blood test. Mr. Birchfield eventually pled guilty to DUI refusal, but did so conditionally and by doing so, reserved his right to appeal. In the appeal, the lawyers argued that the Fourth Amendment's prohibition on unreasonable searches and seizures prohibited the State from prosecuting him for a refusal of consent to a search without a warrant.
In the other North Dakota case, Beylund v. Levi, an officer observed Beylund driving all over the place. When the police officer performed the traffic stop, he noticed an open bottle of wine in the car and smelled a strong odor of alcohol coming from the driver. The officer arrested Beylund for DUI and asked him to consent to a blood draw. This case differs from Birchfield because Beylund consented to the blood draw, which revealed a blood alcohol concentration of 0.25 percent, three times the legal limit. As a result of the blood test, Beylund was convicted and his license was suspended. He appealed the conviction. Beylund claimed his consent to the blood draw was coerced by the implied consent advisory, which threatened him with a crime and a license suspension if he refused to take the test.
In the final case from Minnesota, Bernard v. Minnesota, police officers were called to a boat launch due to a report of a drunk person trying to pull a boat out of the water and driving the truck and trailer. Bernard was in his underwear when the officer's arrived. He admitted to drinking but said he did not drive the vehicle. At the time of this denial, he was holding the keys to the truck in his hand. He smelled of alcohol and had bloodshot eyes and poor balance and refused to take sobriety tests offered by the officer. He was arrested for driving under the influence. At the police station he was once again requested to take a breath test and Bernard refused. He was charged with Minnesota's version of criminal DUI refusal. The trial court dismissed the charges, concluding the Fourth Amendment allowed Bernard to refuse a warrantless search. The Minnesota Court of Appeals reversed, and the Minnesota Supreme Court upheld their decision.
After hearing these cases, the Supreme Court decided that the Fourth Amendment prohibits warrantless blood tests. Because breath tests are much less intrusive, and therefore are more reasonable that the blood draw, the Supreme Court decided law enforcement can constitutionally criminalize a driver's refusal to submit to a breath test. The majority opinion of the Supreme Court compared breath tests to other minimally intrusive searches like fingernail scrapings, which had previously been upheld. Factoring the minimal intrusion of a breath test against a person's limited privacy interest in breath they readily exhale, the Supreme Court found that a breath test is a "reasonable" Fourth Amendment search. The Supreme Court justified upholding warrantless breath tests in this case under the "search-incident-to-arrest" doctrine. That is, a police officer can generally search a person and their immediate vicinity after the person has been lawfully arrested.
In applying its holdings to the cases before the Court, Birchfield's conviction was reversed. He cannot be prosecuted for refusing a warrantless blood test. Bernard's conviction was affirmed, as he refused a lawfully requested breath test. In Beylund's case, the Supreme Court remanded the case to the North Dakota Supreme Court to reconsider whether Beylund's consent to take the blood test was voluntary in light of their decision in Birchfield.
What does that mean for pending DUI refusal cases in Pennsylvania? If the officer requested a blood test and the person refused, there is the possibility that the prosecutions may be dismissed (at the very least it appears evidence of the refusal may not be introduced to the jury). If the person consented to a blood test, a person may be able to argue the consent was involuntary in light of the implied consent advisory read to them threatening the driver with a crime. If the officer requested a breath test, however, the driver may be out of luck. After this decision, warrantless breath tests in the DUI context are categorically constitutional as a search incident to arrest. For those drivers, their charges will likely be upheld.
The Pennsylvania Legislature is going to need to rewrite Pennsylvania's Implied Consent law. the Advisory read to every arrested driver informs them that they are "required by law" to submit to testing and that "refusal is a crime," statements that are simply not true in light of Bernard.
Special thanks to Vincent Caputo