The rule for many years in DUI cases was that taking blood from a DUI suspect was not a violation of the 4th Amendment search and seizure laws.  But in June of 2016, the U.S. Supreme Court issued a decision in a case called Birchfield v. North Dakota which changed everything in DUI cases and declared that under the 4th Amendment, the police can request a breath test without a search warrant, but police CANNOT request blood from a suspect without a warrant.  It has always been the case that police could simply get around the requirement for a search warrant by obtaining a valid, voluntary consent from someone to search (whether the search is a house, a car, a person’s blood, etc).  In Pa, the level of intoxication (BAC-alcohol levels) can change the penalties for the DUI itself.  Therefore, under that new Supreme Court case, a suspect cannot be exposed to higher penalties based on the blood results if the blood was drawn without a search warrant, nor can the person face penalties for refusing to consent to the blood draw without a warrant.

The thing that the general public may not understand (based on the many recent questions I get from clients about this issue) is that there is another issue that is separate involving PennDOT’s penalties for a driver for refusing to submit to a blood test.  Under current Pennsylvania law, a refusal to provide blood can result in a one year suspension from PennDOT (or more) due to the refusal—irrespective of whether a DUI is ultimately charged against the person, or whether the person is convicted of DUI.  Cops in Pa are required to read warnings to a driver before requesting a breath or blood sample.  Before the Supreme Court case, police had a form that they would read or present to the driver and the form contained terms describing the penalties for the refusal.  But after this Supreme Court case, with DUI cases where that old warning form was used by police, the DUI case was typically getting reduced by the District Attorney (in most counties in Pa) to the lowest tier—meaning lowest possible penalty for the DUI, and then just based on whether it was a 1st offense, 2nd offense, etc.  So some DUI suspects were ending up with much lower sentences right after that Supreme Court decision last year.  But in response to the Supreme Court’s decision, police and district attorneys adjusted by changing the warning form and they believe that the changes they made are now in compliance with the Birchfield decision.  Some police departments have chosen to ask for consent to blood or breath testing without using any form.  Both responses raise other potential legal issues and there are pending challenges in Pennsylvania courts to the various ways that prosecutors have adjusted.

The main issue to understand is that a driver in Pennsylvania (before and now) can be charged with DUI where police never got any breath or blood tests.  It is a form of DUI called impaired driving and simply requires that the District Attorney and police prove the DUI without that “scientific evidence.”  They can still rely on testimony from police that the person appeared intoxicated (bloodshot eyes, glassy eyes, slurred speech, incoherent speech, etc) and in Lehigh and Northampton Counties, can try to introduce the audio/video recording from the DUI center (or hospital ER, or dashcam footage from the police car) that reflects the suspect’s behaviors and interaction with police to demonstrate intoxication.

There still may be legal challenges to raise in individual DUI cases related back to the Birchfield decision.  Evaluating that requires careful discussion with your attorney and the attorney’s full understanding of all the subtle issues in current DUI law in Pennsylvania.

TO EVALUATE WHETHER YOU MAY HAVE SUCH A CHALLENGE IN YOUR OWN DUI CASE, CALL ME OR COME SEE ME IN MY ALLENTOWN OFFICE TO DISCUSS IT:   (484) 695-7023.