In June, 2016, the U.S. Supreme Court handed down a ruling in Birchfield v. North Dakota which dramatically changed the landscape of Pennsylvania’s DUI prosecutions — in the short term. The question remains: what effect did Birchfield have in the long term?

The U.S. Supreme Court ruled that the Fourth Amendment permits the police to request a sample of a person’s breath without a warrant, but does not permit such a request for a blood sample without a warrant. Pennsylvania law currently enhances the penalties for a DUI based on a person’s blood alcohol concentration (BAC). Therefore, as a result of Birchfield a driver cannot be subject to those enhanced penalties for the results of blood which was drawn without a warrant, nor can he be subject to those penalties for refusing to submit to the warrantless request. (It is a whole different question as to whether PennDOT can still punish a driver for refusing to submit to a blood test – the short answer is that they can). Moreover, Pennsylvania law enforcement officers are required to read certain chemical testing warnings to a driver prior to requesting a blood or breath sample be given. Prior to Birchfield that form, a DL-26, contained language discussing the enhanced penalties. After Birchfield, DUIs where the old DL-26 was read to a driver were routinely being reduced by the prosecutor’s office to the lowest possible penalties for that DUI, depending on whether it was a 1^st offense, 2^nd offense, etc. This resulted in significantly lower sentences for most DUIs. Predictably, the police and District Attorney’s Offices across the Commonwealth made changes which they believed addressed the issues presented in Birchfield.

But where are we now? Shortly after Birchfield, the Pennsylvania State Police revised the DL-26, removing what they believed was the “tainted” language discussing enhanced penalties for higher blood levels. Several police departments have chosen as a departmental policy to attempt to gain consent for a blood or breath sample without ever reading the DL-26. This raises numerous issues of the voluntariness of the consent. Moreover, Pennsylvania law requires that the form be read, but really offers no remedy for the failure to read it unless the person refuses to consent. At that point, PennDOT may not suspend a person’s license for the refusal (either a 12 or 18 month suspension), but this has no bearing on the ability of the Commonwealth to prosecute the DUI and seek the enhanced penalties. Yes, this seems counterintuitive, but it is true.

As time distances ourselves from Birchfield, the lessons learned from the Supreme Court’s decision do not change, nor does the resulting law which was created. While police and prosecutors may tweak things here and there, believing that they have remedied the situation, creatively reading and applying the holding of Birchfield by defense counsel and courts is necessary to make sure that the concepts announced by the Supreme Court live on.

Dan Bush is a criminal defense attorney at Lamb McErlane’s West Chester, PA location. He chairs Lamb McErlane’s criminal litigation department and is a partner in the firm.  Dan is a former prosecutor in the Chester County District Attorney’s office who has twenty years of experience prosecuting and defending individuals charged with a crime.

Contact criminal defense attorney Dan Bush at dbush@lambmcerlane.com. 610-430-8000.