DUI; Suppression of Blood Test Evidence in light of Birchfield v. North Dakota; Waiver

Commonwealth v. Wolfel, 2017 WL 6629411 (Pa. Super. 2017)(unreported), allocatur granted Apr. 10, 2019, appeal docket 23 WAP 2019

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. 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 Pennsylvania Supreme Court will resolve whether blood test evidence should be suppressed in accordance with Birchfield when the consent form threatening criminal penalties for refusal was valid at the time of the blood test.

The Superior Court summarized the relevant facts here as follows:

On December 21, 2014, Wolfel, while operating her vehicle, was involved in an accident in Cameron County in which her vehicle struck two pedestrians. One of the pedestrians sustained serious injuries, and the other was pronounced dead at the scene. When police arrived, Trooper Josiah Reiner (“Trooper Reiner”) asked Wolfel to perform a field sobriety test, which she performed poorly. Wolfel thereafter submitted to a portable breath test, after which she was placed under arrest on suspicion of driving under the influence (“DUI”). The police transported Wolfel to the Cameron County Health Center for a blood test. At the hospital, Trooper Reiner read Wolfel the O’Connell and implied consent warnings, as contained on the Pennsylvania State Police DL–26 form, after which Wolfel consented to a BAC test. Wolfel was subsequently charged with the following offenses: homicide by vehicle while DUI; aggravated assault by vehicle while DUI; DUI of alcohol or controlled substance; DUI of alcohol or controlled substance with a BAC of .178%; DUI of alcohol or controlled substance; and careless driving.

Slip Op. at 1-2 (footnotes omitted).

While the case was pending, the U.S. Supreme Court released its decision in Birchfield v. North Dakota and Wolfel filed a motion to suppress the results of her blood test based on Birchfield’s invalidation of the enhanced penalties included in the consent form Wolfel signed in 2014. The trial court granted Wolfel’s motion based on Birchfield, resulting in the suppression of all blood test evidence.

The Commonwealth appealed to Superior Court pursuant to Pa. R.A.P. Rule 311(d),[1] arguing that because Birchfield was not released until 2016, the warnings in the consent form provided to Wolfel in 2014 were valid at the time. The Commonwealth Court further argued that the “good faith exception” to the exclusionary rule permits introduction of the blood test evidence notwithstanding the criminal penalties threatened in the consent form. Wolfel countered that the “good faith exception” to the exclusionary rule does not exist under the  Article I, Section 8 of the Pennsylvania Constitution.

Superior Court noted that while the “good faith exception” to the exclusionary rule does not exist under the Pennsylvania Constitution, “Wolfel sought suppression solely on the basis of Birchfield, and did not seek suppression pursuant to Article I, Section 8 of the Pennsylvania Constitution” and “Wolfel’s counsel never mentioned the Pennsylvania Constitution at the suppression hearing.” Slip Op. at 7-8. Thus, Superior Court concluded that by moving to suppress evidence only under the federal constitution, Wolfel waived any argument that the evidence should be suppressed under the Pennsylvania Constitution.

Having determined that Wolfel waived her argument under the Pennsylvania Constitution, Superior Court relied on its  decision in Commonwealth v. Updike, 172 A.3d 621 (Pa. Super. 2017) where the court “examined the decisions in other jurisdictions which have found that blood draw evidence collected in circumstances similar to the case sub judice was admissible under the good-faith exception to the exclusionary rule.” Slip Op. at 8. In that case, the court determined that since the defendant sought suppression pursuant to the Fourth Amendment, and not Article I, Section 8 of the Pennsylvania Constitution, the good-faith exception applied. Applying the exception to Wolfel’s case, the Superior Court reasoned:

Here, as in Updike, at the time of Wolfel’s arrest, police were required to read Wolfel the warnings contained in the DL–26 form, which this Court and our Supreme Court had consistently upheld as constitutional. See id. at *10–11. Police officers in Pennsylvania had no reason to believe that the Supreme Court of the United States would render the statute at issue unconstitutional in Birchfield. Id. at *11. As such, the blood draw evidence was admissible under the good-faith exception to the Fourth Amendment, the only ground raised for suppression by Wolfel.

Slip Op. at 9. Thus, Superior Court held that the trial court erred in granting Wolfel’s Motion to Suppress, and reversed and remanded the case to the trial court.

The Pennsylvania Supreme Court granted allocatur to determine:

Whether the Superior Court of Pennsylvania disregarded the controlling authority of Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), by reversing the trial court’s decision suppressing the results of the testing of Petitioner’s blood.


[1] Rule 311(d) permits interlocutory appeals where the Commonwealth certifies with its notice of appeal that the trial court’s order terminates or substantially handicaps the prosecution.

Allocatur grants present an excellent opportunity for your group or association to advance your legal and policy goals by filing an amicus brief. Participating as an amicus has proven to be an effective method of advising and influencing courts and often can involve far fewer resources than traditional lobbying.

If you are interested or would like more information, contact Kevin McKeon or Dennis Whitaker.