Last week, the Superior Court of Pennsylvania issued its decision on Commonwealth v. Barker, in which it sought to answer the question: When a person suspected of DUI requests to have a specific or alternate form of chemical testing administered, must the arresting officer honor that request? If the officer fails to honor that request, is the appropriate remedy dismissal of the charges? In a sharp departure from the conventional advice in Pennsylvania that an officer gets to choose the type of test administered, the Superior Court ruled that the officer must honor a reasonably practicable request for an alternate test, and that if he fails to do so, the appropriate remedy is in fact dismissal of the charges.
In February 2009, defendant William Barker was pulled over in Allegheny County when the officer following his car suspected that he might have been under the influence of alcohol or drugs. Barker failed the field sobriety tests and was not administered a portable breath test, as Officer Michael Naviglia believed that he was under the influence of drugs, not alcohol. Barker was arrested and taken to the hospital for a blood sample to be drawn in order to test for drugs.
When they arrived to the hospital, Barker refused to submit to a blood test and requested that a breathalyzer, urine, or hair follicle test be administered instead. His reasoning for this was valid: Barker, a diabetic, can only receive “blind” needles in his abdomen, since he had previously developed an infection in his leg because of a needle administered at that same hospital. Despite his pleas, Officer Naviglia refused to administer an alternative test and charged Barker with Driving Under the Influence of Drugs, a violation of 75 Pa.C.S. § 3802(d)(2). He was found guilty in the Court of Common Pleas of Allegheny County, which sentenced him to six months of probation and ordered him to pay a $1,000 fine.
In his appeal, Barker argued two points: 1) The evidence against him was insufficient to warrant a DUI conviction, and 2) The officer’s refusal to administer an alternate test deprived Barker of his right to obtain evidence that was potentially favorable to his case. The Superior Court rejected Barker’s first claim, opining that there was sufficient evidence against him to warrant a 3802(d) conviction. His second claim, however, had more merit.
Regarding this claim, Barker argued that 75 Pa.C.S. § 1547(i) required that he be tested for illegal substances in his system using a method of his choice, should he make such a request. The statute states:
(i) Request by driver for test.–Any person involved in an
accident or placed under arrest for a violation of section
1543(b)(1.1), 3802 or 3808(a)(2) may request a chemical test of
his breath, blood or urine. Such requests shall be honored when
it is reasonably practicable to do so.
Barker argued that since it was reasonably practicable to administer an alternate test and the Officer refused to do so, he was deprived of evidence that was potentially favorable for him. The Commonwealth, on the other hand, argued that this statute did not apply, since 3802(d) does not require a blood test to be administered in the first place. Officer Naviglia offered a slightly less compelling argument of why an alternative test need not be administered, stating, “I’m not touching somebody’s urine.”
After hearing the testimony of both parties, the Superior Court sided with Barker and held that his rights were violated when he was not afforded the opportunity to be tested using a method of his choice. Quite plainly, the Court ruled that “the refusal of an officer to allow such testing, when practicable, imposes so significantly on the motorist’s attendant right to that evidence as to obviate any suggestion that the manner of such testing is consigned to the unfettered discretion of the arresting officer. Thus, where the motorist requests alternate practicable testing and offers a facially valid reason for his request, we discern no basis in the statutory language for the officer to refuse the request.” Accordingly, his judgment was reversed and he was discharged.
We caution motorists to use caution in asserting this newly announced right. While the right has long existed under the statute, most lower courts did not interpret the statute in the same fashion as the Superior Court did, and the Supreme Court could still reverse the holding in Barker. Further, asserting the right to choose your own test is done at some peril, as the statute only requires the alternative testing if it is reasonably practicable. If the motorist refuses the test the officer requested and the alternative is not found to be reasonably practicable the motorist could suffer a license suspension for the refusal. On the other hand, a motorist who suffers from a medical condition that makes drawing blood difficult or dangerous now has a legitimate argument to make against complying with a request for the blood draw. If you are concerned about the implications of this decision we suggest that you consult an experienced DUI lawyer about your particular circumstances. To speak to one of our Montgomery County DUI attorneys, call Fairlie & Lippy today.