In June 2016, PennDOT created a new implied consent form DL-26B, which police officers are required to read to motorists before requesting a chemical test for alcohol or drugs when DUI is suspected. This form was created to comply with the Supreme Court holding in Birchfield v. North Dakota as the prior form was clearly unconstitutional.
Birchfield held that a state may not criminalize the refusal to submit to a blood test in the absence of a warrant. The Supreme Court held that warrantless blood tests implicate significant privacy interests, including being physically invasive and producing a sample that can be preserved and used to find further information beyond just the blood-alcohol content.
Post-Birchfield, the PA Superior Court recently reversed the trial court suppression of blood-alcohol content (BAC) results in multiple cases. The PA Superior Court held that PennDOT’s revised DL-26B Implied Consent form complies with Birchfield and places defendants on notice that everyone, including ordinary citizens, are presumed to know the law.
In Commonwealth v. Gary Miller, the Commonwealth appealed the court’s order that granted Miller’s motion to suppress his BAC results. Police did not obtain a warrant, but obtained the blood sample by reading the new DL-26B form, including a warning that refusing the blood test could lead to certain civil penalties. Miller did not realize that these civil penalties were different from those he received due to a prior DUI arrest. The Superior Court decided that Miller’s reliance on previous police interaction did not make his consent involuntary, holding that an incorrect subjective belief based on failure to listen to police warnings is entitled little weight and could not form the basis for suppressing his BAC results.
In another similar case, Commonwealth v. Lisa Gay Robertson, the PA Superior Court held that defendants are presumed to know case law in addition to statutory law and rejected the argument that police have an affirmative duty to inform defendants that there are no criminal penalties for rejecting a blood test. Robertson was arrested and read the DL-26B, which does not state anything about criminal penalties, but does state that she could face civil penalties for refusal. The PA Superior Court held that courts in Pennsylvania generally presume that defendants are aware of the law, meaning that Robertson was presumed to be aware of the now-unconstitutional Motor Vehicle Code provision that mandated further criminal penalties for those convicted of DUI’s who refuse a blood test. The Superior Court also rejected the trial court’s argument that the police have an affirmative duty to inform Robertson of her right to refuse without further criminal penalties.
The second holding is really quite shocking. There are still laws on the books in Pennsylvania which impose greater penalties for refusing a blood test than if one were to submit. The law is far from clear and settled in Pennsylvania on these issues, and not all iterations of the various possible fact scenarios have been litigated yet. Most lawyers can’t tell you exactly what the state of the law is, so is it fair that we presume our citizens have full knowledge of all court decisions, even when they sometimes conflict with statutes that are on the books? Should criminal penalties attach to murky scenarios? Pennsylvania’s citizens are being jailed based upon laws that are anything but clear – something that should bother us all.
These cases establish that despite Birchfield’s requirements, the public is presumed to be on notice of the statutory and judicial laws enacted, any changes made to the Motor Vehicle Code, and that their own subjective, erroneous beliefs are not enough to suppress BAC evidence.
Will the Pennsylvania Supreme Court take a look at the holding in Commonwealth v. Lisa Gay Robertson?
To read more on Birchfield v. North Dakota:
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Birchfield held that a state statute mandating warrantless blood tests is unconstitutional. There are many additional potential violations that could occur during a DUI traffic stop. If you are being charged with a DUI or are concerned about your fourth amendment rights, call Fairlie & Lippy P.C. at (215) 997-1000.