DUI; Retroactive Application of Birchfield v. North Dakota

Commonwealth v. Hays, 2018 WL 481895 (Pa. Super. 2018) (unreported), allocatur granted July 24, 2018, appeal docket 36 MAP 2018

Kirk Hays was arrested for driving under the influence based on evidence of intoxication during a traffic stop. Following his arrest and after officers informed Hays of increased penalties for failure to submit to a blood test, Hays submitted to a blood test revealing a 0.192 blood alcohol content.   The Commonwealth charged Hays with driving under the influence of alcohol (“DUI”) (general impairment) and DUI (highest rate of alcohol).

Hays filed an omnibus pre-trial motion requesting that the trial court suppress the evidence against him, claiming the initial stop of his vehicle was illegal and the Commonwealth failed to preserve evidence of the Pennsylvania State Police dash cam video relating to his vehicle stop. In this motion, Hays never claimed that his consent to the blood draw was involuntary or coerced and never requested that the trial court suppress the evidence of his blood alcohol content as the result of an alleged involuntary consent.

The trial court denied Hays motion. Following a jury trial, Hays was found guilty of DUI (general impairment) and DUI (highest rate of alcohol). Hays was sentenced to serve a term of five days to six months in jail for the DUI (general impairment) conviction, but in accordance with an agreement between Defendant and the Commonwealth, the trial court imposed no further penalty for the DUI (highest rate of alcohol) conviction.

Hays then filed a post-sentence motion where he claimed—for the first time—that his consent to the blood draw was involuntary. Specifically, Defendant argued, on the day after his jury trial, the United States Supreme Court decided Birchfield v. North Dakota, –––U.S. ––––, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016).[1]

In Birchfield, the Supreme Court held that a state may not “impose criminal penalties on the refusal to submit to [a warrantless blood] test.” Birchfield, 136 S.Ct. at 2185–2186. Further, the Supreme Court held, where the petitioner only consented to a warrantless blood test after being told by the police that “test refusal in these circumstances is itself a crime,” the petitioner’s consent to the test was potentially involuntary. Id.

In his post-sentence motion, Hays relied on Birchfield to argue he only consented to the blood draw after the police informed him that, if he refused the blood draw, he would be subject to enhanced criminal penalties upon conviction. Hays requested that the trial vacate his judgment of sentence and schedule a hearing to determine if his consent to the blood test was voluntary.

The Commonwealth opposed Hays’ motion, arguing that Hays was not entitled to post-sentence relief because Hays did not properly preserve the issue at, or before, trial.

The trial court granted Hays’ post-sentence motion and granted him a new trial. The Commonwealth filed a timely notice of appeal, raising one claim before the Superior Court:

Did the trial court commit an error of law by holding that [Birchfield] applies retroactively to [Defendant], even though [Defendant] failed to properly preserve the suppression argument that his consent for a blood draw was coerced, and granting [Defendant] a new trial?

Slip. Op. at 5.

The Superior Court agreed with the Commonwealth, concluding that the recent holding in Commonwealth v. Moyer, 171 A.3d 849 (Pa. Super. 2017) required the grant of a new trial to Hays be vacated. Specifically, in Moyer, the Superior Court declined to retroactively apply Birchfield when the Defendant in that case failed to challenge the warrantless blood draw at any stage of the litigation prior to her post-sentencing motion, explaining:

[W]here an appellate decision overrules prior law and announces a new principle, unless the decision specifically declares the ruling to be prospective only, the new rule is to be applied retroactively to cases where the issue in question is properly preserved at all stages of adjudication up to and including any direct appeal.

Slip Op. at 7 (emphasis in original). Based on this principle, the Superior court held that because Hays failed to raise any claim at, or before, trial that his consent to the blood draw was involuntary, the trial court erred in granting Defendant’s post-sentence motion.

The Supreme Court of Pennsylvania granted allocatur on the following issues:

Should Birchfield v. North Dakota apply to all cases not yet final when the decision was rendered?

[1] Hays’ case joins a long line of recent allocatur grants from the Supreme Court of Pennsylvania arising from the U.S. Supreme Court’s decision in Birchfield v. North Dakota. To read more on other recent allocatur grants involving Birchfield, click here.

For more information, contact Kevin McKeon or Dennis Whitaker.