This article originally appeared on Penn Live by Steve Marroni on June 30th, 2016.
Those who were recently busted while boozing and cruising could be getting a bit of a break on their penalties as prosecutors review hundreds of pending cases. in light of a recent U.S. Supreme Court ruling.
“It’s a big case, and we had to react right away, as did other counties across the state,” Dauphin County District Attorney Ed Marsico said.
That ruling, issued last week by the nation’s highest court in Birchfield vs. North Dakota, requires a warrant if someone suspected of driving under the influence refuses to take a blood test.
In Pennsylvania, the ruling means police officers can no longer threaten DUI suspects with the highest possible penalties if they refuse to submit to a blood draw.
Defense attorneys are happy, because this could keep first-time offenders who refuse to take a blood test out of jail.
The split ruling by the Supreme Court determined police officers must obtain search warrants in order to draw the blood of motorists arrested on suspicion of drunk driving, but at the same time, no warrants are needed to conduct breath tests.
This decision came from the consolidation of three cases – one from Minnesota and two from North Dakota, according to the New York Times.
In the Minnesota case, William R. Bernard refused to take a breath test after his DUI arrest. That test, the high court ruled, was actually a permissible search.
Justice Samuel A. Alito Jr. wrote, “Accordingly, the Fourth Amendment did not require officers to obtain a warrant prior to demanding the test, and Bernard had no right to refuse it.”
One kind of liquid helped get hundreds of DUI defendants in Pa. charged with drinking and driving. Now, another kind of liquid may get these allegedly intoxicated drivers off the hook.
But in the case of Danny Birchfield in North Dakota, the court said he was entitled to refuse a blood test after police found he drove his car into a ditch, because a blood draw is more intrusive than a breath test.
The third case wrapped into the ruling involved Steve M. Beylund of North Dakota, whose case is being sent back to the lower court to determine whether he had consented to his blood test.
The ruling has a huge impact in Pennsylvania, where in many counties law enforcement has gone almost exclusively the route of blood testing in DUI cases.
That doesn’t mean pending cases will just go away, however.
“We don’t expect to dismiss them based on the blood tests,” Marsico said. “We’re confident there’s still other evidence of impairment, but the decision certainly handicaps our position in those cases.”
Other evidence can include the failure of a roadside sobriety test and a suspect showing typical signs of impairment, such as blood-shot eyes, slurring speech and a disheveled appearance.
Marsico said his office is reviewing a couple of hundred DUI cases to determine how they will be handled now.
In York County, where DUIs make up about one-third of the caseload, Chief Deputy Prosecutor Tim Barker said his office is reviewing hundreds of pending cases as well.
When his office got word of the ruling last week, he put together a new protocol for police to follow and, within hours, instructed officers to no longer tell motorists they could face greater criminal penalties for refusing a blood draw.
Levying a civil penalty, such as a driver’s license suspension, for a refusal for a blood draw is still permitted, though, Barker added.
“It’s a constitutional violation if you attach a criminal penalty for refusing a blood draw and if someone consents to a blood draw under the threat of a criminal penalty if they refuse,” Barker said.
If blood was improperly drawn in a case, then that toxicology evidence would be suppressed in court, Barker said, but like authorities in Dauphin County, Barker noted there would still be other evidence for the lesser-tiered offense of general impairment.
Similarly in Lancaster County, District Attorney Craig Stedman said his office is taking steps to comply with the new ruling. Like most counties, Lancaster County has many pending DUI cases, and about half of those involve blood draws.
He said investigators have plenty of work ahead of them but pointed out the new ruling is not a “get-out-of-jail-free card” for offenders.
The ruling, on the surface, looks like good news for those going through the system right now, said one area attorney who specializes in DUI cases.
“I think it’s phenomenal news from a defense perspective,” said Patrick Lauer, who has law offices in Camp Hill and Carlisle. “But in reality, I don’t think they’ll have a difficult time getting their warrants.”
A judge on duty could have a warrant signed for a blood test within two hours, he noted.
It makes a difference right now, though, for those who had been charged with the highest tier of DUI offenses, and it could mean the difference between jail time and no jail time.
“Right now, if a person had a first offense with a refusal, they are looking at a mandatory three days in jail,” Lauer said. “If it’s general impairment, it’s no jail time at all for a first offense.”
It gives him plenty of ammunition for pending cases involving a blood test or a refusal to take one.
“With cases that are in the pipeline now, we can raise these issues,” Lauer said.
Despite the ruling, Stephen Erni, executive director of the Pennsylvania DUI Association, said police will continue with their enforcement of DUI laws.
“I don’t want people to think this Supreme Court case will in any way, shape or form alter Pennsylvania’s continued, aggressive enforcement efforts,” he said.
But he said the way to solve the problem is not through arrests, but through the rehabilitation of offenders.
In 2015, there were 52,382 DUI arrests in Pennsylvania, Erni said.
“It’s certainly a bump in the road, but it doesn’t stop law enforcement from proceeding to enforce DUI laws,” Marsico added.
And Barker noted one positive thing to come out of the ruling for police is that it has law enforcement asking, “Why are we accepting refusals in the first place?”
His office has already been working on developing tighter protocols to get those search warrants for blood draws to reduce the amount of refusals, Barker said.