PA Superior Court Finds DUI Mandatory Minimum for Refusing Blood Draw Unconstitutional
I have written a lot recently about the problems with Pennsylvania's unconstitutional DUI statute following a recent ruling of the United States Supreme Court. In Birchfield v. North Dakota, the US Supreme Court held that states may not impose criminal penalties on motorists who refuse to submit to a warrantless blood draw regardless of whether or not the state has an "implied consent" policy on the books. Now, the fallout from Birchfield continues unabated. The Pennsylvania Superior Court has ruled that Pennsylvania's DUI statute, which punishes motorists for refusing blood testing by imposing an increased mandatory minimum sentence, is unconstitutional.
As written, Pennsylvania law provides an increased mandatory minimum penalty for motorists who are convicted of DUI and who also refused chemical testing. In a case where the defendant refused testing, the prosecution may still prove that the defendant was driving under the influence of alcohol through testimony regarding the observations of the arresting officer. For example, if an officer were to testify that he or she stopped the defendant for swerving and the defendant smelled of alcohol, fell asleep in the vehicle while attempting to retrieve paperwork, and was unable to stand, then a court could potentially convict the defendant of DUI based on the testimony of the officer. This is true even in the absence of blood or breath testing.
In cases where the Commonwealth never requested chemical testing or where the results have been suppressed or excluded, a conviction based solely on the observations of the officer would be punished under 75 Pa.C.S. 3802(a)(1) with a mandatory minimum of probation, no driver's license suspension, and some fines and classes for a first offense. However, in cases where the Commonwealth can also prove that the defendant refused testing after the officer clearly requested it and read certain warnings to the defendant, the penalty would increase dramatically. In a refusal case, the penalty for a first-offense DUI conviction jumps from probation and no driver's license suspension to 72 hours in jail, a one year driver's license suspension, and increased fines and costs as well as other conditions. The difference is even more dramatic for a third offense as a third offense refusal conviction results in a one year mandatory minimum sentence.
Pennsylvania courts have now begun to recognize that Pennsylvania's implied consent scheme of punishing the refusal to submit to a blood draw even in cases where the police have not obtained a warrant is unconstitutional under Birchfield. Therefore, in Commonwealth v. Kohli, the Superior Court upheld the defendant's conviction on appeal but sua sponte reversed his sentence and found that a court may not impose the increased mandatory minimum sentence which would have applied to a blood draw refusal.
Mr. Kohli was found guilty by a jury of DUI in 2013 and sentenced to 18 - 36 months in prison followed by two years probation. Because Kohli had at least two prior DUIs in the preceding ten years and had refused blood testing, a one year mandatory minimum sentence applied. Kohli appealed his conviction on the grounds that the evidence was insufficient that he was DUI and that the Court erred in imposing a mandatory minimum sentence because the question of whether the mandatory minimum applied should have been submitted to the jury. The Superior Court agreed with the trial court that the jury had sufficient evidence to convict Kohli, but instead of addressing Kohli's sentencing argument, the Superior Court, on its own accord, found the mandatory minimum to be unconstitutional because it penalizes the refusal to submit to a blood draw.
Kohli is notable for three reasons. First, it illustrates the enormous fallout of the United States Supreme Court's Birchfield decision. It is now at least the second case in which a Pennsylvania appellate court has found major sections of Pennsylvania's DUI statute unconstitutional. In an earlier case, the Superior Court found that the warnings which police officers throughout Pennsylvania were required to read to motorists when requesting a blood or breath test were unconstitutionally coercive in breath test cases. The warnings informed the motorist that the motorist would be subject to criminal penalties for a refusal, and Birchfield held that there can be no criminal penalties for refusing to consent to blood testing. Therefore, the results of the blood test should be suppressed because the police had obtained consent to testing in an unconstitutionally coercive manner. Now, the court has ruled that the statute is simply unconstitutional.
Second, these rulings have made a mess of Pennsylvania DUI law. The courts may now punish the refusal to submit to breath testing with significantly increased mandatory minimums, but they may not do so for blood test refusals. This results in drunk driving potentially being punished much more severely than driving under the influence of drugs or narcotics. Further, it is now unclear what warnings the police are actually required to give a motorist prior to requesting a blood or breath test. Although the warnings are probably okay for a breath test, they are clearly not okay for a blood test. But the warnings were required by previous decisions of Pennsylvania appellate courts, and therefore, it may not be permissible for the police to modify the warnings on their own.
Third, Kohli establishes that the issue may be raised by defendants whose convictions are still on direct appeal even if no attempt was made to preserve the issue in the lower court. The Kohli court noted that "sentencing issues which implicate a court's statutory authority to impose a sentence implicate the legality of sentence" and "it is well-settled that legality of sentence questions may be raised sue sponte by [the appellate court]" Therefore, if the defendant's case is still on direct appeal, the defendant may challenge the mandatory minimum even if the defendant never raised such a challenge in the trial court or previously during the appeal.
I will once again close with the best advice I can give. If you are facing criminal charges, you need a criminal defense lawyer. DUI charges are not what they used to be. They are now incredibly serious. If you are facing DUI charges, you need a criminal lawyer who knows the law, the defenses, the court system which will handle your case, and a lawyer who regularly practices criminal defense.
Our criminal defense and DUI lawyers can properly evaluate your case and fight to get you the best possible result. DUI in particular is an area of law where lawyers who do not typically handle criminal cases often think they can handle the case because many first-time offenders are eligible for the ARD program. But the reality is that many people do not get ARD, and occasionally, some people have strong enough defenses that they should not accept ARD. Even ARD, which results in expungement, can have professional licensing consequences. The consequences of a DUI conviction are enormous. They range from significant jail time to the loss of driving privileges as well as problems with employment and professional licenses. If you are facing DUI charges, call 267-225-2545 now for a free 15-minute DUI defense strategy session.
