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.

Zak Goldstein 12/22/16 Zak Goldstein 12/22/16

PA DUI Update - Much of Pennsylvania DUI Law Found Unconstitutional By Superior Court

Changes in Pennsylvania DUI Law

Back in August, I wrote about a potential dramatic change in Driving Under the Influence law brought about by the United States Supreme Court’s decision in Birchfield v. North Dakota. In Birchfield, the United States Supreme Court held that it is unconstitutional to criminally penalize a motorist for refusing to submit to a DUI blood test when the police have not obtained a search warrant for the motorist's blood. As many criminal defense lawyers predicted at the time, this holding would lead to challenges to Pennsylvania’s DUI statute.

Constitutional Problems with PA's DUI Statute

In the first Pennsylvania appellate decision since Birchfield, the Pennsylvania Superior Court has ruled that the portion of the statute providing increased penalties for refusal is unconstitutional and that the standard police O’Connell warnings which are given to every motorist prior to a blood draw are unconstitutionally coercive. Therefore, under Commonwealth v. Evans, any blood results obtained after a motorist has been read the O’Connell warnings must be suppressed, and a defendant may not face increased criminal penalties for refusing a blood test.

The first problem with the DUI statute arises from the fact that it provides enhanced criminal penalties for a motorist who refuses the blood draw and is later found guilty of DUI. A second problem stems from the fact that Pennsylvania law requires police officers to provide motorists with O’Connell warnings prior to requesting a blood draw. The O’Connell warnings include a warning that failure to consent to the blood test will result in enhanced criminal penalties should the motorist subsequently be charged with and convicted of Driving Under the Influence. Now that a state may not impose additional penalties for refusal, the O’Connell warnings are not accurate.

In Evans, the defendant was arrested for DUI (sometimes referred to as "DWI") and asked by the arresting officer to submit to a blood test. When the officer asked him to submit to the test, the officer read the standard warnings. Those warnings included the statement that a refusal would lead to increased criminal penalties should the defendant subsequently be convicted of DUI. After hearing the warnings, the defendant agreed to the blood test, and the results ultimately put him in the highest tier for a DUI. This triggered a one year mandatory minimum jail sentence, and the defendant was sentenced to 1-6 years of incarceration in a state prison.

Following the Birchfield decision, Evans’ attorney moved to suppress the blood results and argued that although Evans consented to the blood draw, the police had obtained his consent through illegal coercion by reading him the now-inaccurate O'Connell warnings. The trial court disagreed and denied the motion to suppress, but the Superior Court has now reversed the decision of the trial court. The Superior Court recognized that subject to certain exceptions, police must obtain a warrant prior to conducting a search, and drawing blood from a DUI suspect counts as a search. One of the exceptions to the warrant requirement is where the defendant voluntarily consents. Therefore, the case turned on whether or not the refusal statute could survive the Birchfield decision and if not, whether the O’Connell warnings are unconstitutionally coercive due to their inaccuracy.

States May Not Impose Criminal Penalties For Refusing A Blood Test Unless Police Have A Warrant

First, the court noted that under Birchfield, Pennsylvania’s implied consent system in which the refusal to submit to testing may result in increased criminal penalties is unconstitutional. Although refusal itself is not a crime because the defendant must be convicted of DUI in order for the increased penalties to apply, the court noted that the statute does clearly impose criminal penalties on the refusal to submit to testing. The statute makes a conviction following the refusal of testing a Tier III offense instead of a Tier I offense. A Tier III offense always carries a mandatory minimum sentence of incarceration and a driver’s license suspension, whereas a first Tier I offense requires only six months of probation and no driver’s license suspension. Therefore, the court found that the statute is unconstitutional due to Birchfield's holding that a state may not criminalize the refusal to submit to testing.

Second, once the court recognized that the statute is now unconstitutional, it became clear that the police officer’s advisory to the defendant was partially inaccurate. The officer told him that he would face increased criminal penalties for a refusal, as officers having been doing throughout Pennsylvania for years, but that increased penalty would actually be unconstitutional under Birchfield. Accordingly, the court held that the warnings were unconstitutionally coercive and that the trial court should have suppressed the results of the blood test.

New Defenses to DUI Charges

The holding is critically important for many defendants who have been arrested for DUI and either refused the blood test or had their blood drawn without a warrant. It is also something to consider when deciding whether to submit to a blood test. Although the failure to submit to a blood test will still result in an automatic driver's license suspension and inferences which may be used against the defendant at trial, it cannot result in increased criminal penalties.

We Can Help With DUI Charges In Pennsylvania and New Jersey

If you have been arrested for DUI or are even just curious about what to do when the police ask for a blood test, you should consult with an experienced DUI Defense Attorney. There are often defenses available which only an experienced criminal lawyer and DUI attorney will recognize. Although police departments have begun to change the warnings that they will be reading going forward, many defendants have already been read incorrect and unconstitutional warnings. If you have been charged with Driving Under the Influence and the police conducted a blood draw or asked you to submit to a blood draw and you refused, you need an experienced criminal lawyer to evaluate your case, recognize the potential defenses, and make the right legal arguments on your behalf. Call 267-225-2545 today for a free, honest consultation.

Zak Goldstein 8/9/16 Zak Goldstein 8/9/16

Birchfield v. North Dakota - States May Not Punish DUI Blood Test Refusals

In Birchfield v. North Dakota, the Supreme Court held that it is unconstitutional to criminally penalize a motorist for refusing to submit to a DUI blood test when the police have not obtained a search warrant for the motorist's blood.

DUI Defense Update - Birchfield v. North Dakota

The United States Supreme Court recently issued a critical opinion which has already had a dramatic effect on Driving Under the Influence ("DUI/DWI") litigation in Pennsylvania and many other states. In Birchfield v. North Dakota, the Supreme Court held that it is unconstitutional to criminally penalize a motorist for refusing to submit to a DUI blood test when the police have not obtained a search warrant for the motorist's blood. This holding is a major development in Pennsylvania because the DUI statute, 75 Pa.C.S. 3802, provided enhanced criminal penalties for a motorist who refused the blood draw and was later found guilty of DUI. Now, unless the police obtain a warrant, a motorist cannot be punished with additional jail time or other additional criminal penalties for refusing the blood draw. The prosecutor may be able to comment on the refusal at trial, but the motorist cannot receive additional jail time or a higher gradation on a conviction.

New Defenses in Drug DUI Cases and Blood Test DUI Cases

The holding is also critically important for many defendants who have already been arrested for DUI and either refused the blood test or had their blood drawn without a warrant. Birchfield is particularly important because the Court also recognized that where the arresting officers improperly inform a defendant that the failure to submit to a blood draw will result in criminal penalties, the trial court may be required to exclude the results of the blood test as the product of unconstitutional coercion.

The Impact on DUI Charges in Philadelphia

This holding is particularly relevant in Philadelphia and much of Pennsylvania. In Philadelphia, DUI blood draws are supervised by the Accident Investigation Division of the Philadelphia Police Department. Prior to each blood draw, the AID Division would read what are known as the O'Connell warnings to the defendant. The O'Connell warnings historically included a statement to the defendant that refusal to submit to a blood test, even where the police had not obtained a warrant, would result in increased criminal penalties should the defendant be convicted of DUI at trial. Likewise, the State Police read a very similar form when they supervised DUI-related blood testing. The warnings may now be constitutionally defective and could require a court to exclude the results of the blood draw obtained pursuant to these coercive warnings.

Contact a Philadelphia DUI Defense Attorney Today

If you have been arrested for DUI, it is absolutely critical that you consult with experienced defense counsel. As I have explained in previous posts, there are often defenses available which only an experienced criminal lawyer will recognize. Prosecutors are handling these cases differently in different jurisdictions, and many state trial courts have not yet ruled on how Birchfield changes the rules in Pennsylvania. If you have been charged with DUI and the Police conducted a blood draw or asked you to submit to a blood draw, you need an experienced criminal lawyer to evaluate your case, recognize the potential defenses, and make the right legal arguments on your behalf. Call 267-225-2545 today for a free, honest consultation.

Zak Goldstein 2/10/16 Zak Goldstein 2/10/16

I got arrested for DUI. Do I have to plead guilty?

If you are charged with DUI in Pennsylvania or New Jersey, you need an experienced, aggressive criminal defense attorney who knows the law inside and out and can review your case for all possible defenses.

CALL NOW

Every day I speak with people who have been charged with Driving Under the Influence (“DUI”) and think that because they were driving drunk and got pulled over, they have to plead guilty. They are often surprised to learn that there are often defenses to many DUI cases.

First, if you don’t have a record, sometimes it is best to take a deal and enter the ARD program. When a defendant does not have a record and was not involved in a serious accident, the Commonwealth will usually offer ARD. ARD stands for Accelerated Rehabilitative Disposition. The program involves serving a short period of probation, a license suspension, and paying fines and court costs. The defendant does not have to plead guilty to enter into the ARD program, and the arrest and case will be expunged if the defendant successfully completes the program. If the defendant fails to complete the probation, then the defendant will be removed from the program and retain the right to litigate pretrial motions or proceed to trial. Even when the evidence suggests a strong defense, ARD is often a good option because it provides the only guarantee of an expungement at the end of the case. ARD is typically only available for someone who does not have any prior convictions, and it is rarely offered twice. The Commonwealth often offers ARD for non-DUI misdemeanors.

Second, if ARD is not offered or the defendant wishes to fight the case, there are a number of potential defenses that an experienced criminal defense and DUI attorney may be able to present. These defenses include motions to suppress. The motion to suppress is a motion filed by the defense attorney arguing that because the police engaged in some unlawful conduct, such as stopping or searching the defendant illegally, the evidence of intoxication such as the blood test should be excluded at trial. Other potential defenses may include speedy trial motions, double jeopardy motions, and motions to exclude testing results due to a failure to properly calibrate the testing equipment. Additionally, there are many other complicated procedural rules which the police and prosecutor have to follow in order to bring a successful prosecution. The failure to follow each one of these rules could result in the dismissal of the case or exclusion of the evidence. Finally, if pre-trial motions do not result in dismissal of the charges, an experienced defense attorney may be able to challenge the Commonwealth’s evidence that the defendant actually operated the vehicle or was intoxicated.

DUI carries the potential for serious penalties in terms of mandatory minimum incarceration periods, criminal records, and license suspension. If you are charged with DUI in Pennsylvania or New Jersey, you need an experienced, aggressive criminal defense attorney who knows the law inside and out and can review your case for all possible defenses. You need an attorney who does not handle these cases “part-time.” Your freedom, driver’s license, and reputation depend on it. If you have been charged with DUI in Pennsylvania or New Jersey, contact the Philadelphia DUI defense lawyers of Goldstein Mehta LLC for a free consultation today.

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