DUI; Post Conviction Relief, Retroactive Application of Birchfield v. North Dakota

Commonwealth v. Olson, 179 A.3d 1134 (Pa. Super. 2018), allocatur granted Aug. 7, 2018, appeal docket 26 WAP 2018

In 2015, Olson pled guilty to one count of DUI.  Olson did not consent to a blood test at the time of arrest.  Pursuant to mandatory minimum sentencing guidelines, on December 21, 2015, the trial court sentenced him to an enhanced penalty for the failure to consent.  75 Pa. C.S. § 3804(c)(3) (imposing a mandatory minimum sentence of one year of imprisonment and a fine of $2,500 for failing to consent to a blood test).  Olson did not file a direct appeal.

In 2017, Olson filed a Post Conviction Relief Act (PCRA) Petition challenging the legality of his mandatory minimum sentence pursuant to Birchfield v. North Dakota, 136 S.Ct. 2160 (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. The PCRA court dismissed Olson’s petition.

On appeal, Superior Court upheld the dismissal.  The court held Birchfield does not apply retroactively to cases pending on PCRA review.  Relying on Commonwealth v. Kurtz, 172 A.3d 1153, 1157 (Pa. Super. 2017), the court stated that Birchfield would render an enhanced penalty for refusal to take a warrantless blood test illegal.  However, Birchfield was decided after Olson’s sentence had become final.  Thus, the case turned on whether Birchfield has retroactive effect in a PCRA challenge.  The court relied on Commonwealth v. Riggle, 119 A.3d 1058 (Pa. Super. 2015), which declined to give Alleyne v. United States, 133 S.Ct. 2151, 2160-61 (2013), retroactive effect to cases on timely PCRA review where the defendant’s judgment of sentence had been finalized before Alleyne was decided.  Alleyne held that any fact, other than the fact of a prior conviction, that increases the penalty for a crime beyond the prescribed statutory minimum must be submitted to a jury and proved beyond a reasonable doubt.

The court also relied on Commonwealth v. Ross, 140 A.3d 55, 59 (Pa. Super. 2016), for the proposition that a rule established after sentencing has become final only applies retroactively in a PCRA proceeding if “(1) the rule is substantive or (2) the rule is a ‘watershed rule of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.”  Id.

The court reasoned Birchfield is not substantive because it does not decriminalize conduct or prohibit punishment against a class of persons.  It asserted that under Birchfield, DUI remains a crime and blood test are permissible with a warrant or consent, so Birchfield does not alter the range of conduct or the class of persons punished by the law.  Instead, Birchfield regulates only the manner of determining the degree of defendant’s culpability and punishment.

The Supreme Court granted allocatur on the following issues:

(1) Does Birchfield v. North Dakota, –– U.S. ––, 136 S.Ct. 2160, 195 L.Ed. 2d 560 (2016), apply retroactively where the petitioner challenges the legality of his sentence through a timely petition for post-conviction relief?

(2) Does Birchfield v. North Dakota, –– U.S. ––, 136 S.Ct. 2160, 195 L.Ed. 2d 560 (2016), render enhanced criminal penalties for blood test refusal under 75 Pa.C.S. §§ 3803–3804 illegal?

[1] Olson’s 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 Birchfieldclick here.

For more information, contact Kevin McKeon or Dennis Whitaker.