The Superior Court of Pennsylvania held in Commonwealth v. Barr , just a few days ago, that a trial court must submit to the jury the issue of whether the defendant in a DUI refusal case was properly informed of Pennsylvania’s implied consent law and the penalties for a chemical test refusal. The court applied the reasoning of Commonwealth v. Xander to Apprendi v. New Jersey in coming to its decision.
On September 14, 2011, Jason Barr caused a single-vehicle accident in Clarion County that injured both Barr and his passenger. Acting on suspicion that Barr was driving under the influence, the State Trooper placed him under arrest and requested a blood test, which Barr allegedly refused. Had Barr not refused the test, he would have been charged with an ungraded misdemeanor, punishable by a minimum of 30 days to a maximum of 6 months in jail. However, his refusal enhanced his possible sentence to a minimum of 90 days and a maximum of 60 months.
The trooper testified that he read Barr the O’Connell warnings and that Barr signed a DL-26 (the refusal form), but the form signed by Barr was not admissible at trial since the Commonwealth failed to make the form available to Barr’s counsel prior to trial. As such, the only evidence available for the jury regarding the refusal was the testimony of Barr and Trooper Berggren. Despite Barr’s objection, the trial judge instructed the jury to determine whether Barr actually refused the test, but did not instruct the jury to determine whether the O’Connell warnings in the DL-26 were read in the first place. After being found guilty and sentenced to 30 to 60 months in jail, Barr appealed, arguing that the issue should have been presented to the jury to be found proven beyond a reasonable doubt.
In Apprendi v. New Jersey, the Supreme Court of the United States held that any fact that can increase the possible sentence beyond the statutory maximum for the crime must be submitted to the jury for decision. And in Commonwealth v. Xander, the Superior Court of Pennsylvania held that the defendant in a DUI case must have the implied consent/O’Connell warnings read to him, as the “warnings [are] a necessary prerequisite to a valid refusal.”
Synthesizing these two cases, the Superior Court concluded that the jury must decide whether it has been proven beyond a reasonable doubt that the arresting officer read the O’Connell warnings to the defendant. In Barr, the defendant’s refusal would raise his mandatory minimum sentence from 30 days in jail to 90 days, and the maximum from 6 months to 60 months. It follows that under Apprendi, the jury must decide whether he actually refused the test, since a refusal raises the mandatory minimum sentence. Applying Xander, since the warning is absolutely necessary for a defendant to be found guilty of DUI for refusal, the precise issue of whether the defendant was warned of the implications of refusal must be submitted to the jury, along with the issue of whether he actually refused.
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