The Pennsylvania Supreme Court has decided the case of Commonwealth v. Bell, holding that the Commonwealth may introduce a defendant’s refusal to submit to a blood test in its case-in-chief against a defendant in his DUI trial as evidence of guilt. The Court concluded that the prosecution may use such a refusal to argue that the defendant acted with the consciousness of guilt. The refusal, however, still may not be used as the basis for increased criminal penalties unless police have first obtained a search warrant.

Commonwealth v. Bell 

The defendant was arrested for suspicion of DUI on May 16, 2015. After his arrest, he was transferred to the Lycoming County DUI center. At the DUI center, a detective read the defendant the PennDOT DL-26 form, and he subsequently refused a blood test. He was subsequently charged with DUI along with other summary traffic offenses. 

Prior to his trial, the defendant filed a pre-trial motion to dismiss arguing that he had a constitutional right to refuse to submit to a warrantless blood test and thus evidence of his refusal should be suppressed and the DUI charge dismissed. The trial court denied his motion and he proceeded to have a bench trial on the same day. At his trial, the arresting officer testified regarding the defendant’s refusal to submit to blood testing and that the defendant asserted he did not want a needle in his arm because he had previously contracted hepatitis from a hospital needle. At the conclusion of the trial, the defendant was found guilty of all charges. 

 The defendant then filed a motion for reconsideration. He specifically argued that the United States Supreme Court’s decision in Birchfield v. North Dakota precluded states from penalizing DUI defendants for refusing to submit to warrantless blood testing and he should be granted a new trial at which evidence of his refusal would be inadmissible. The trial court agreed with the defendant and determined that he was entitled to a new trial because the court relied on his refusal as a basis for the DUI conviction. The Commonwealth then filed an interlocutory appeal to the Superior Court. The Commonwealth argued that Birchfield did not affect the admissibility of refusal evidence to show consciousness of guilt. In response, the defendant argued that Birchfield created a constitutional right to refuse a warrantless blood test and the admission of his refusal was improper because it penalized him for exercising his constitutional rights. 

The Superior Court’s Decision 

A three-judge panel of the Superior Court reversed the trial court’s order granting the defendant a new trial and remanded the case for sentencing. The panel reviewed Pennsylvania’s implied consent statute and found that suspected drunk drivers do not have a constitutional right to refuse a blood test and it was constitutionally permissible for the Commonwealth to introduce evidence of such refusal. The defendant then filed a petition for allowance of appeal and the Pennsylvania Supreme Court agreed to hear the case. 

What is the Implied Consent Statute? 

The implied consent statute is codified under 75 Pa C.S. § 1547. It provides that that “any person who drives…a vehicle in the Commonwealth of Pennsylvania shall have been deemed to have given consent to one or more chemical tests of breath, blood or urine.” If someone does not comply with § 1547, then they can face a license suspension. Further, the statute also allows for the introduction of this evidence into a criminal trial against a defendant. This was the relevant statute in the instant case.  

What Was The Holding in Birchfield? 

In Birchfield, the United States Supreme Court held that blood and breath tests are governed by the Fourth Amendment of the United States Constitution. Additionally, although implied consent with respect to warrantless breath tests is constitutionally permissible, blood draws are different because taking blood is more intrusive than giving a breath sample. Therefore, the police need a warrant (or actual consent) before they can take a blood test. Additionally, a state may not impose criminal penalties on a suspect who refuses to submit to a warrantless blood test. The Birchfield Court did not rule on whether evidence of the refusal could be used at trial to show consciousness of guilt. In other words, the Court did not determine whether prosecutors could argue that a defendant who refuses a blood test likely has something to hide.

The Pennsylvania Supreme Court’s Decision 

A divided Pennsylvania Supreme Court held that the Commonwealth may introduce evidence of a defendant’s refusal as substantive evidence against him in a DUI trial. In making its decision, the majority analyzed not only United States Supreme Court decisions, but also decisions from other state courts. The majority’s logic was that driving is not a constitutional right and therefore if someone drives in Pennsylvania, they must comply with the implied consent law. The majority acknowledged that this may be a “difficult choice” for some motorists, but because driving is a “civil privilege” there was no constitutional issues in requiring drivers to make said choice. Further, the majority found that Birchfield did not expressly forbid states from introducing these evidentiary consequences for refusal and therefore believed that the United States Supreme Court would agree with their decision. As such, the defendant will not get a new trial, and his case will be remanded for sentencing.  

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