In a recent decision that will have a major impact on DUI cases in Pennsylvania, the Supreme Court of the United States decided the case of Birchfield v. North Dakota, holding that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving, but that it does NOT permit warrantless blood tests. Consequently, a driver can not be subject to enhanced criminal penalties for refusing to submit to a warrantless blood test. Further, there is a great argument that anyone who was read Pennsylvania’s DL-26 implied consent refusal form, which advised that greater criminal penalties were applicable to anyone refusing the test, did not knowingly and voluntarily consent to the blood draw. Finally, even if the person was not read DL-26 warnings, I think there is a great argument that ignorance of the law is not a defense, a person is presumed to know the law, and current Pennsylvania law does in fact impose enhanced criminal penalties for people who refuse requested blood tests – and thus any consent given to police to draw blood has been coerced.
Birchfield was a consolidation of three separate but similar cases pertaining to drunk driving laws. In the first case, the defendant Birchfield was arrested for DUI following an incident in which an officer found the defendant’s car in a ditch and Birchfield exhibited multiple signs of impairment. After the arrest, Birchfield refused to let his blood be drawn despite being faced with penalties from a statute which criminalizes the refusal of such tests. Birchfield later entered a conditional guilty plea, admitting that he had refused the test, but claiming that the Fourth Amendment prohibits criminalizing the refusal of warrantless blood tests.
In the second case, the defendant Bernard was arrested for DUI after police found his car partially stuck in a river. The arresting officer informed Bernard of the state’s implied consent laws and explained that refusing a breath test is a crime. However, Bernard, who had been convicted of four prior DUIs, refused the test and was convicted of test refusal in the first degree.
In the third case, the defendant Beylund was arrested for DUI after police observed him driving erratically. The arresting officer transported Beylund to a hospital where he informed him of the state’s implied consent laws and the fact that refusal of a blood test would be a crime. Beylund then agreed to have his blood drawn, and testing revealed that his BAC was more than three times the legal limit. However, Beylund later argued that his consent to the blood test was coerced by the officer’s warning that refusing the test would be a crime itself.
The Court began its analysis by reaffirming that the taking of one’s breath or blood constitutes a search, and is therefore governed by the Fourth Amendment. Because of this, a person may not be searched without a warrant except under certain circumstances, most notably when incident to a lawful arrest. The Court then analyzed the degree to which a person’s body or property may be searched incident to arrest using a balancing test, weighing the degree to which the search intrudes upon the person’s privacy and the degree to which the search is needed for the promotion of legitimate government interests.
Regarding breath tests, the court held that these tests or “searches” do not present significant privacy concerns. Because of this, the government interests served by using them, namely keeping the public safe from drunk drivers, outweigh privacy issues, meaning that a warrantless breath test incident to arrest is constitutional. In reaching this conclusion, the Court noted that the physical intrusion of a breath test was negligible, comparing the administration of a breath test to blowing up a balloon or using a straw. Additionally, people do not have any possessory interest or emotional attachment to the breath in their lungs because it is not part of their body. Further, a breath test is only capable of revealing a person’s BAC, unlike a blood test which authorities could use to learn a great deal about the test subject. Also, the Court held that, unlike with other tests, participation in a breath test is not likely to increase the level of embarrassment inherent in being arrested.
On the other hand, the Court held that blood tests are significantly more intrusive because they require piercing the skin and removing a part of the body. Additionally, law enforcement officials could potentially use a blood sample for more than just a BAC calculation. While the governmental interests in calculating a DUI suspect’s BAC are substantial, the Court held that the intrusion on a person’s privacy during a blood test is too great, especially when the less intrusive alternative of a breath test is available. Thus, warrantless blood tests incident to arrest are unconstitutional.
Applying this analysis to the defendants, the Court found that Birchfield was criminally prosecuted for refusing a warrantless blood test, and consequently the search he refused could not be justified as a search incident to his arrest or on the basis of implied consent. Birchfield merely refused an unlawful search, and therefore the judgment against him was reversed. As for Bernard, the breath test he refused was a lawful search incident to his arrest. The Fourth Amendment did not require the arresting officer to obtain a warrant before taking Bernard’s breath, and thus Bernard had no right to refuse the test. Regarding Beylund, who consented to a blood test believing that it was necessary under the state’s implied consent laws, the Court held that voluntariness of consent to search must be determined from the totality of the circumstances. Because Beylund’s consent was based on the erroneous belief that a warrantless blood test was lawful, the Court remanded his case to the state court to reevaluate Beyland’s consent given the partial inaccuracy of the officer’s explanation of the state’s implied consent laws.
In summary, the Fourth Amendment allows criminal penalties based upon warrantless breath tests incident to arrest because the administration of a breath test only negligibly intrudes on a person’s privacy, and the government interests served by allowing such tests are great. However, the Fourth Amendment does NOT allow criminal penalties based upon warrantless blood tests incident to arrest because piercing a person’s skin and taking a part of their body is highly intrusive, and the government’s interest in calculating the person’s BAC could be served just as well with a breath test.
Pennsylvania’s implied consent laws will no longer allow police to draw a person’s blood simply because they were arrested while driving. However, this does not appear to impact situations where police request a breath test, or request a blood test and report a refusal to take the test to PennDOT for purposes of civil license suspension (since no criminal penalties are implicated by the civil license suspension). Further, while the Court analyzed North Dakota’s law which made it a separate crime to refuse a BAC test, PA merely imposes enhanced penalties for refusal rather than making it a separate offense entirely. However, the result will likely be the same, and law enforcement in PA will not be permitted to enhance criminal penalties due to a defendant’s refusal of an unconstitutional blood test.
The practical results of all of this are expected to include:
1. Prosecutors will concede that all enhanced penalties based upon refusal of a blood test after the motorist is warned about enhanced sentencing for refusal are no longer valid, and the motorists will be sentenced based upon the general impairment tier.
2. It is not clear whether prosecutors and PennDOT will honor the spirit of Birchfield in ARD cases, potentially reducing highest tier cases that would receive two month suspensions to general impairment level cases with no suspension. Ultimately, I believe they will, as it is intellectually dishonest to honor the ruling in one setting but not the other.
3. The standard advice that all drivers are better off taking a blood test upon police request may need to be modified, especially for multiple offenders who likely can only trigger the most serious grading and mandatory minimum penalties by taking the blood test, rather than by refusing it. It remains to be seen whether a revised DL-26 form that removes reference to increased criminal penalties will remove the unconstitutional coercion so long as Pennsylvania law remains that you are subject to increased penalties for refusing the test. Prosecutors are arguing that the new form is sufficient, but can you really argue that removing language from a form eliminates the stench of a law that remains on the books, especially when citizens are presumed to know the law and ignorance of the law is no defense?
4. There is no way to prosecute drug cases with breath tests. Police will need to rely on DRE testimony or untrained police testimony about signs of drug-based impairment. This virtually eliminates the metabolite-based drug DUI cases that do not rely on impairment, unless police obtain warrants and request blood.
5. Police will have to either get a warrant to obtain blood or move to breath testing instead. Breath testing is much more vulnerable to challenge and easier for the defense to overcome.
To read the Supreme Court’s opinion in its entirety, click here.
What do you think of the holding in this case? Have you thought of other ramifications of this decision as applied to Pennsylvania law? Let us know in the comment section below.