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DUI Law Update: What happens if I Consent to a Blood Draw in Pennsylvania*

  • Published: November 21, 2018
DUI Law Update: What happens if I Consent to a Blood Draw in Pennsylvania*

It’s late at night. You’ve been stopped by the police. O No! you didn’t drink anything but smoked a little marijuana earlier in the day. Relax. Cooperate. Make the officer feel at ease. License and Registration? “Sure, Officer.” “You need me to go back to the station with you? Why? Blood draw? What’s that? I didn’t do anything. I hate needles!” What should I do? What’s this form? “If you don’t consent, you will lose your license for 12 months.” “ But Officer, I don’t want to have a blood draw is there another way? “No, you have to do it or your driver’s license is gone.” Ugh, I’ll do it, but what do I do from here?

An Overview of Birchfield v. North Dakota

On June 23, 2016 the U.S. Supreme Court issued a decision significantly impacting DUI laws in connection with the chemical testing of a motorist’s blood. In Birchfield v. North Dakota, the high court held that implied consent laws cannot deem motorists to have given consent to criminal penalties upon their refusal to submit a warrantless blood sample. Prior to Birchfield, if a motorist lawfully arrested in Pennsylvania for suspicion of driving under the influence of alcohol or drugs refused to submit a warrantless blood sample that motorist was subject to the same punishment as a driver with a BAC of 0.16 percent or higher which constitutes the highest range of penalties applicable to DUI offenses. However, post-Birchfield, a motorist who refuses to provide a warrantless blood sample and is subsequently convicted of DUI will no longer be subjected to these enhanced criminal penalties.

Birchfield also reasoned that a motorist’s consent to submit a warrantless blood sample, provided after a warning of increased criminal penalties should they refuse, may be invalid due to coercion and the warning’s partial inaccuracy of prohibited criminal penalties for the refusal. Prior to Birchfield, a police officer in Pennsylvania utilized PennDOT’s DL-26 form which advised a motorist that they would be subject to more severe criminal penalties if they refused to provide a warrantless blood sample. These warnings derived directly from 75 Pa. C.S. Section 1547, commonly referred to as the Implied Consent Law, providing that “it shall be the duty of the police officer to inform the person that … if the person refuses to submit to chemical testing, upon conviction or plea for violating section 3802(a)(1) [General Impairment], the person will be subject to” the same penalties as a person with the highest rate of alcohol. PennDOT revised this form for warrantless blood draws (now DL-26B) to comply with Birchfield by removing any reference to criminal penalties for a motorist’s refusal to submit a warrantless blood sample (drivers are still advised of a license suspension because it is a civil, not criminal, penalty). Even though the Pennsylvania State Police revised the DL-26 to remove what they believed was the “tainted” language discussing enhanced penalties for higher blood levels. Several police departments have chosen as a departmental policy to attempt to gain consent for a blood or breath sample without ever reading the DL-26. This raises numerous issues of the voluntariness of the consent and has resulted in the blood evidence getting thrown out at Motion to Suppress hearings.

What does this mean for someone charged with DUI in Philadelphia, Pennsylvania?

The most common DUI “blood draws” in Philadelphia are marijuana DUI’s. These types of DUI’s obviously require a blood draw to substantiate any charge that the defendant is under the influence of marijuana. So what happens if I cooperate with the police, they read me the DL form and then take my blood? Generally, a few things are happening in the Philadelphia Municipal Courts:

As a general principle, it is always better to cooperate with the police at time of arrest and let your lawyer challenge the evidence in Court. In this situation, this principle could not be more true.

Depending on the other facts of your case, the arresting officers, and the DL form read, you may have a good chance of having the blood results suppressed and winning the case.

Wait, Did you just say winning my Marijuana DUI case?

Yes! You can win! Without blood evidence showing that there is THC in your blood. You have a good chance of winning your case and avoiding the mandatory minimum of 3 days in jail. This is a highly fact specific situation and requires a trained attorney to litigate this issue on your behalf. Philadelphia Criminal Defense attorney Troy Crichton has won hundreds of DUI cases and there is a good chance you may be able to win. Call him today at (267) 225-3317 for a free consultation.

What should I do if I’ve been charged with a marijuana DUI in Philadelphia?

Consult with Troy Crichton at (267) 225-3317 immediately. It is very important you speak with an experienced criminal defense attorney who is up to date with the latest legal developments. The status of Pennsylvania law is currently in flux as several cases are working their way to the Pennsylvania Supreme Court dealing with the complexities of Birchfield and it’s affect on you.

* This is not legal advice. Nothing in this article is to be construed as legal advice. Nothing in this article should be construed to infer any type of attorney client relationship. Legal advice and an attorney-client relationship is only entered into upon contracting for legal services. Each and every DUI/DWI charge is case and fact specific, please call to schedule a consultation with an attorney.


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