The United States Supreme Court recently decided police need a warrant to seize blood from someone accused of driving under the influence. In Birchfield v. North Dakota, the court threw out laws that made it a crime for a motorist to refuse a blood test, finding it is unconstitutional to use the threat of criminal penalties to win cooperation. The Court upheld the right of an arresting officer to request a breath test without a warrant.
For about half of Pennsylvania’s counties, the ruling may have little impact, since they gauge blood-alcohol levels using breath tests such as a Breathalyzer. Those machines- in which suspects blow into a tube, allowing the alcohol on their breath to be measured – are less intrusive and can be used by police without a warrant.
In upholding warrantless breath tests and enhanced penalties for refusing them, the court found they cause little physical intrusion and minimal inconvenience. Blood tests, however, are a different matter and violate the Fourth Amendment’s prohibition against unreasonable searches and seizures.
Because the Supreme Court’s ruling didn’t directly address Pennsylvania, it remains up to the state’s courts to determine how it may or may not apply, a process that will take months, if not years.
District attorneys’ offices in each county are adopting their own approach to this problem. The results may vary for the individual driver from county to county despite a similar fact pattern. While this issue is being sorted out by the Courts, you may be able to reach a more favorable resolution of your case, depending on where you are being prosecuted.
Pennsylvania’s DUI statute doesn’t make refusal a crime in and of itself. But the law does carry greater punishments for those who won’t voluntarily give blood. Drivers who refuse to submit to blood testing and are convicted ofDUI face the steepest penalties allowed by law. Refusing a test may cause another problem. Under Pennsylvania law, a refusal automatically brings a license suspension of a least one year – a civil penalty that remains untouched by the court’s decision and is still pursued by PENNDOT.
Since 2004, Pennsylvania law has carried three tiers of drunken driving, Tier One (blood alcohol level of 0.08 and above), Tire Two (0.1 0 and above) and Tier Three (0.16 and above). Any defendant who refuses testing is placed under the highest tier of punishment under the statute.
The differences tier to tier can be substantial. A first-time offender faces a mandatory minimum sentence of six months of probation on the lowest tier, but two and three days in jail on the others.
For a second offence, the difference is even greater: five days in jail, versus 30 and 90 days.
For a third-time offender, the gap is striking: 10 days in jail for lowest tier, 90 days for the middle and one year in jail for the highest tier.
Under Birchfield, if a driver has refused a blood test, the Commonwealth will be unable to prove a blood alcohol level at the time of driving. Thus, the driver can only be convicted of DUI (general impairment), which carries no mandatory minimum penalty.
Drivers will still be arrested and prosecuted, even if they refuse to give blood. Even without blood evidence, prosecutors can still prove drunken driving through the testimony of the officer who made the arrest and his or her observations that the motorist was intoxicated and unsafe to drive.
Once a conviction is won, there is nothing to stop a prosecutor from asking the judge to impose a sentence that is lengthier than the mandatory minimum or to even argue for the same penalty that would have resulted if a blood test were used he said.
The ruling’s long-term impact may be that more police departments simply rely on breath testing instead ofblood testing.