Birchfiel, Blood Draws, Consent, Burdens of Proof
Pennsylvania's appellate courts have finally reviewed and decided a case addressing, in the context of a warrantless blood draw in a DUI, what is consent in Pennsylvania.
Pennsylvania's DUI LawA review of the DUI informed consent issue is a good place to start. Consistent with 75 Pa. C.S.A. ?1547(c) the Pennsylvania's Motor Vehicle code imposes evidentiary admissibility standards for blood tests consensually drawn without a warrant. Pennsylvania's Motor Vehicle code addressing driving under the influence ("DUI") of alcohol or controlled substances, 75 Pa. C.S.A. ? 3802 (b)(c) & (d) each contain as an essential element of the criminal offense a defendant's blood alcohol concentration level.
The grading provisions of the Pennsylvania Motor Vehicle code, 75 Pa. C.S.A. ?3803(d), as they relate to DUI charges, identify in subsections 1 through 4 that any individual who is under investigation for violating 75 Pa.C.S.A. ? 3802, et seq., (accusing an individual of operating a motor vehicle under the influence of drugs or alcohol such that they are incapable of safely driving) and refuses to voluntary submit to a warrant-less blood test, is to receive enhanced criminal sentencing terms of incarceration solely as a result of the refusal to voluntarily submit to the blood draw.
What does Birchfield MeanBirchfield focuses on the legality of motorists lawfully arrested for drunk driving subject to enhanced criminal penalties for refusing to allow a warrantless blood draw to measure the level of alcohol in their blood stream. The Supreme Court rejects North Dakota's asserted need to obtain blood alcohol readings absent a warrant in light of the fact that its motor vehicle code implied consent laws, similarly to Pennsylvania's, provide for separate and enhanced criminal sentencing terms of incarceration solely as a result of the refusal to voluntarily submit to the blood draw.
Birchfield approves of implied consent laws such as 75 Pa.C.S.A. ? 1547 that impose civil penalties and evidentiary consequences on motorists who refused to comply breath tests. However, Birchfield then rules it is unconstitutional for a state to insist upon an intrusive blood test and then to impose criminal penalties on those who refuse to submit to those same tests. "There must be a limit to the consequences to which motorists may have deemed to consent by virtue of a decision to drive on a public road."
Birchfield makes clear the Pennsylvania's Motor Vehicle Law, 75 Pa.C.S.A. ?3802, et. seq., is unconstitutional because it provides for enhanced criminal penalties of those accused of operating a motor vehicle under the influence of drugs or alcohol when, during a search incident to a lawful arrest, the defendant who refuses to submit a warrantless blood draw pursuant to 75 Pa. C.S.A. ?1547 and/or ? 3802 is subject to enhanced criminal penalties.
Commonwealth v. Evans, 2016 PA Super 293 (December 20, 2016)In determining the validity of a given consent, the Commonwealth bears the burden of establishing that a consent is the product of an essentially free and unconstrained choice -- not the result of duress or coercion, express or implied, or a will overborne -- under the totality of the circumstances. The standard for measuring the scope of a person's consent is based on an objective evaluation of what a reasonable person would have understood by the exchange between the officer and the person who gave the consent. Such evaluation includes an objective examination of the maturity, sophistication and mental or emotional state of the defendant. Gauging the scope of a defendant's consent is an inherent and necessary part of the process of determining, on the totality of the circumstances presented, whether the consent is objectively valid, or instead the product of coercion, deceit, or misrepresentation. Commonwealth v. Smith, 621 Pa. 218, 77 A.3d 562, 573 (Pa. 2013)
The case of Commonwealth v. Evans, 2016 PA Super 293 (December 20, 2016), is the first major Pennsylvania Appellate Court decision discussing Pennsylvania's DUI statute, the Implied Consent Law ("O'Connell Warnings"), and the prosecutor's burden of proof at the suppression hearing. Evans holds that a defendant does not have to prove they gave consent only based upon the threat of a more severe criminal penalty (jail and further license suspension). Rather, the statute itself establishes this burden and the Prosecutor must rebut that legal presumption. Because there is no ability to rebut a presumption of illegitimate consent when threatened with enhanced jail penalties, all motions to suppress must be granted.