The United States Supreme Court ruled in its June 23 decision in Birchfield v. North Dakota, No. 14-1468, that the Fourth Amendment of the United States Constitution permits warrantless breath tests incident to arrests for drunk driving but not warrantless blood tests. Justice Samuel A. Alito Jr. wrote:
(1) Breath tests do not “implicat[e] significant privacy concerns.” Skinner, 489 U. S., at 626. The physical intrusion is almost negligible. The tests “do not require piercing the skin” and entail “a minimum of inconvenience.” Id., at 625. Requiring an arrestee to insert the machine’s mouthpiece into his or her mouth and to exhale “deep lung” air is no more intrusive than collecting a DNA sample by rubbing a swab on the inside of a person’s cheek, Maryland v. King, 569 U. S. ___, ___, or scraping underneath a suspect’s fingernails, Cupp v. Murphy, 412 U. S. 291. Breath tests, unlike DNA samples, also yield only a BAC reading and leave no biological sample in the government’s possession. Finally, participation in a breath test is not likely to enhance the embarrassment inherent in any arrest. Pp. 20– 22.
(2) The same cannot be said about blood tests. They “require piercing the skin” and extract a part of the subject’s body, Skinner, supra, at 625, and thus are significantly more intrusive than blowing into a tube. A blood test also gives law enforcement a sample that can be preserved and from which it is possible to extract information beyond a simple BAC reading. That prospect could cause anxiety for the person tested. Pp. 22–23.
On August 26, the Legal Intelligencer published a story examining how the Supreme Court decision in Birchfield has impacted Pennsylvania DUI cases. When it comes to criminal penalties for alleged offenders who refused to provide blood tests, attorneys told the Intelligencer that “there’s still a lack of uniformity on the issue in Pennsylvania, not only from county to county, but sometimes within the same county.”
The Intelligencer reviewed three recent cases in which judges granted defense motions to suppress blood-alcohol content evidence. Prosecutors in two of those cases challenged application Birchfield “on the grounds that Pennsylvania does not define a separate offense for refusing a blood test but instead provides for harsher penalties if convicted of DUI after refusing a blood test.”
In his August 18 opinion in Commonwealth v. Bush, Fayette County Common Pleas Judge Steve P. Leskinen wrote:
It remains to be seen how the Pennsylvania Supreme Court will rule on the retroactivity of Birchfield in Pennsylvania since virtually every ‘consensual’ blood draw in Pennsylvania since 2004 has contained the coercive warning of ‘enhanced criminal penalties’—that were required by Pennsylvania statute—but, which are now prohibited by the United States Constitution. There is no doubt that the officers administering those warnings were doing so ‘in good faith’ and in ‘reliance on a state statute.’ However, Article I, Section 8 of the Pennsylvania Constitution must provide at least the same minimum protection of individual privacy as the Fourth Amendment of the United States Constitution, even though it may provide more protection.
One lawyer told the Intelligencer that following Leskinen’s ruling in Bush, he received word that another Fayette County judge had subsequently ruled in a separate case that Birchfield was not applicable in Pennsylvania where a defendant consented to a blood test. The attorney “called that decision an ‘appalling’ violation of the coordinate jurisdiction rule and a true indication of how little consensus there is on the issue of Birchfield’s applicability.”
DUI Test Refusal Penalties in West Chester, PA
Like every other state in the nation, Pennsylvania has an implied consent law that states all motorists have essentially agreed to submit to blood, breath, or urine tests if arrested for DUI simply by being licensed to drive in the Commonwealth. If people refuse to submit to chemical testing, they can have their license suspended for one year—even if they are not convicted of drunk driving.
Pennsylvania Statute Title 75 § 3802 established three tiers of DUI violations (a BAC of at least 0.08 percent but less than 0.10 percent is general impairment, a BAC of at least 0.10 percent but less than 0.16 percent is a high rate of alcohol, and all BACs of 0.16 percent or higher are considered highest rate of alcohol), and a person who is convicted of DUI after refusing to submit to chemical tests faces the same penalties as somebody classified as the highest rate of alcohol. The lack of uniformity on the application of the Supreme Court’s Birchfield decision is troubling, but Leskinen noted that the Pennsylvania Department of Transportation (PennDOT) has already revised its “DL-26” form to remove the language threatening criminal penalties for refusing a blood test.
Whether you submitted to chemical testing or refused when you were arrested for DUI in the greater Chester County area, it will be in your best interest to contact a West Chester criminal defense attorney for help exploring all of your possible legal defenses. Forced blood draws or failure to properly inform an alleged offender of his or her rights can lead to drunk driving charges possibly being dismissed.