Driving While Operating Privilege Suspended (DUS); Refusal of Blood Test; Sentence for First Time DUS Conviction Exceeding 90 Days

Commonwealth v. Eid, 2019 WL 304587 (Pa. Super. 2019) (unreported), allocatur granted March 3, 2020, appeal docket 10 EAP 2020.

This case joins a long line of allocaturs granted by the Pennsylvania Supreme Court following the U.S. Supreme Court’s decision in Birchfield v. North Dakota, 579 U.S. __, 136 S.Ct. 2160 (2016). In Birchfield, the U.S. Supreme Court held that a state may not “impose criminal penalties on the refusal to submit to [a warrantless blood] test.” In this case, the Supreme Court will resolve whether the offense of Driving While Operating Privilege Suspended (DUS), 75 Pa.C.S. § 1543(b)(1.1)(i), is unconstitutional because refusal to submit to a warrantless blood test increases the punishment for the offense. Additionally, the court will consider whether the failure to provide for a maximum penalty renders the statute unconstitutionally vague such that any sentence above 90 days violates state and federal due process.

In February 2015, Police Officer Nagy discovered Khalid Eid in a black Nissan facing the wrong direction on a one-way street with the engine running and observed that Eid’s car hit a parked car. Upon approaching Eid, Officer Nagy further observed that Eid displayed characteristics of intoxication. Based on Officer Nagy’s suspicion, Eid was transported to the Accident Investigation Division, where Eid was informed of the consequences of refusing to submit to a chemical test, a breath or blood test. Eid refused to take a chemical test twice – the original request upon arrival and a subsequent request made after an officer noticed marijuana debris in Eid’s mouth. In addition to DUI-related offenses, Eid was charged with DUS under Section 1543(b)(1.1), which provides for three situations in which a defendant, who is driving with a suspended or revoked license, can be convicted: driving with a blood alcohol level above .02%, driving with certain controlled substances in his blood, or refusing blood or breath testing. Following a municipal court hearing, Eid was found guilty of all charges. At sentencing, the court merged the DUI convictions and imposed a term of 90 days to six months’ imprisonment, plus two years of probation and a fine of $2,500. For the DUS conviction, the court imposed the same term of incarceration and probation to run concurrent to the DUI sentence, and a fine of $1,000. Eid appealed to the Superior Court arguing, inter alia, that the DUS statute is unconstitutional and sentence is illegal under Birchfield because it penalizes the refusal to submit to a warrantless blood test. Relying on 18 Pa.C.S. § 106(c), which provides that the maximum penalty for a summary offense is 90 days, and Commonwealth v. Klingensmith, 650 A.2d 444 (Pa. Super. 1994), in which the court noted that the mandatory minimum for a DUS conviction was 90 days, Eid further argued that his DUS sentence was illegal because the sentence imposed by the trial court for his first-time violation of Section 1543(b)(1.1), a summary offense, exceeded 90 days.

Superior Court concluded that Birchfield “addresses suppression issues and sentencing issues,”  and was thus irrelevant as to the sufficiency of evidence issue raised by Eid. Slip Op. at 9-10. The court further held that Eid’s reliance on 18 Pa.C.S. § 106(c) and Klingensmith was misplaced, explaining:

We note that 18 Pa.C.S. § 106(c) provides that the maximum penalty for a summary offense is 90 days. However, Section 6502 of the Vehicle Code specifically states that the provisions of the Crimes Code relating to fines and imprisonment for convictions of summary offenses are not applicable to violations of the Vehicle Code. 75 Pa.C.S. § 6502(c); Commonwealth v. Lyons, 576 A.2d 1105, 1106 (Pa. Super. 1990). Further, this Court in Klingensmith determined that Section 1543(b) permitted a court to impose a flat sentence of 90 days for driving with a suspended license in violation of Section 1543(b). 650 A.2d at 447. We noted that the mandatory minimum was 90 days, but did not address whether there was a statutory maximum. Id.

Slip op. at n. 12. Superior Court ultimately affirmed the DUS conviction, vacated Eid’s sentence on other grounds, and remanded for resentencing.

The Supreme Court granted allocatur to determine:

(1) Is Petitioner’s sentence under 75 Pa.C.S. § 1543(b)(1.1)(i) illegal because the statute is unconstitutional under Birchfield v. North Dakota, __ U.S. __, 136 S.Ct. 2160 (2016), Article I, Section 8, due process, and this Court’s precedents because it increases punishment for a criminal offense based upon the refusal to submit to a warrantless blood test?

(2) Is Petitioner’s sentence ordered by a three judge Panel of the Superior Court under 75 Pa.C.S. § 1543(b)(1.1)(i) illegal because the statute is unconstitutionally vague in that it fails to provide for a maximum penalty, and therefore, any sentence above a 90 day flat sentence violates the state and federal Due Process Clauses?

For more information, contact Kevin McKeon or Dennis Whitaker.