Driving Under the Influence; Enhanced Penalties for Blood Test Refusal

Commonwealth v. Braddock, 2017 WL 1394012 (Pa. Super.)(unreported), allocatur granted Nov. 20, 2017, appeal docket 73 MAP 2017

On the night of October 8, 2014, Kathleen E. Braddock was arrested under suspicion of driving under the influence after an officer witnessed her cross lanes and drive onto the sidewalk. Braddock would not submit to a field sobriety test or answer questions about her alcohol consumption and, in the officer’s opinion, was under the influence of alcohol. The officer took Braddock to Carlisle Regional Medical Center for a blood test and gave Braddock warnings provided in the DL-26 form. Braddock refused the blood test.

Braddock was charged with Driving Under the Influence (General Impairment), Driving Under the Influence (General Impairment with Refusal), Driving on Roadways Laned for Traffic, and Driving Upon Sidewalk.

The trial court sentenced Braddock to 72 hours’ to 6 months’ incarceration, which included a mandatory minimum sentence of 72 hours’ incarceration based on Braddock’s refusal to consent to a blood test pursuant to 75 Pa.C.S. § 3804(c)(1).

In her sentencing challenge, Braddock argued that the U.S. Supreme Court in Birchfield v. North Dakota, 136 S.Ct. 2160 (2016) rendered the enhanced sentencing provision for blood test refusals void. In Birchfield, the Court held that blood tests taken pursuant to implied consent laws are an unconstitutional invasion of privacy as “motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.” Slip Op., at 11.

The Superior Court agreed, noting its own recent holding applying Birchfield:

In Commonwealth v. Giron, [155 A.3d 635], 2017 PA Super 23 (filed January 31, 2017), Giron refused to provide a blood sample and the trial court subjected him to the enhanced penalties provided by Section 3804 as a result. On appeal, this Court addressed the sentencing issue sua sponte and held that “pursuant to [Birchfield] a defendant who refuses to provide a blood sample when requested by police is not subject to the enhanced penalties provided in 75 Pa.C.S. §§ 3803–3804.” Id. at 1 (footnote omitted). Ultimately, this Court concluded that Giron’s sentence was illegal as a result of the enhanced penalty, vacated his Judgment of Sentence, and remanded for resentencing.

***

Because the Birchfield Court held that the practice of criminalizing the failure to consent to warrantless blood testing following a DUI arrest is unconstitutional, the trial court improperly relied upon Section 3804(c)(3) in imposing a mandatory minimum sentence upon Appellant. See Giron, supra.

Id. at 11-12.

The Supreme Court of Pennsylvania granted allocatur to determine:

Whether the Superior Court, relying on Commonwealth v. Giron, 155 A.3d 635 (Pa. Super. 2017), improperly expanded the illegal sentencing doctrine when it vacated Braddock’s sentence on a non-preserved constitutional issue, holding that Birchfield v. North Dakota, 136 S.Ct. 2160 (2016), rendered enhanced penalties under 75 Pa.C.S. §§ 3803-3804 illegal, even though Birchfield recognized exigent circumstances or a search warrant can still justify increased penalties for a blood test refusal?

For more information, contact Kevin McKeon or Dennis Whitaker.