Refuse a Warrantless Blood Draw? Highest Tier DUI Penalties May Not Apply

DUI Refusal penalties are some of the harshest penalties under Pennsylvania law. A DUI Refusal charge is a shorthand term for a DUI General Impairment with Refusal offense. In these cases, the Commonwealth must prove that the accused drove, operated or exercised physical control over the movement of a vehicle after imbibing a sufficient amount of alcohol to render the accused incapable of safe driving. To seek the increased DUI penalties for refusing a chemical test, the Commonwealth must also prove that the defendant refused to provide the requested blood or breath sample. 

In addition to the mandatory 12 or 18 month civil license suspensions, Sections 3803 and 3804 of the Pennsylvania Motor Vehicle Code treat DUI Refusals as Highest Tier offenses, the same as if your BAC exceeded a .16%. While a first offense DUI General Impairment offense carries no mandatory jail time, a first offense DUI Refusal carries a 72 hour mandatory minimum jail sentence. A second offense DUI General Impairment is an ungraded misdemeanor which carries a 5 day mandatory minimum and a 6 month maximum sentence. However, a 2nd DUI Refusal increases the grading of the offense from an ungraded misdemeanor to a 1st degree misdemeanor, which carries a 90 day mandatory minimum jail sentence and a maximum sentence of 5 years. 

In the 2016 Birchfield vs. North Dakota decision, the United States Supreme Court held that warrantless blood draws occurring in the absence of exigent circumstances are unconstitutional. After Birchfield, the Pennsylvania Superior Court held that the DUI Refusal penalties and enhanced gradings do not apply to offenders asked to submit to warrantless blood draws where police lack exigent circumstances to request a warrantless blood draw. 

In Commonwealth vs. Mario Giron (155 A.3d 635), police initiated a traffic stop after observing the defendant side swipe a parked vehicle. Upon approaching the vehicle, the officer noted a strong odor of alcohol coming from the vehicle, and that the defendant had red, glassy eyes and slurred speech. Upon exiting the vehicle, the defendant had unsteady footing, and was placed under arrest for DUI. He was asked to submit to a blood draw, and not a breath test, and was read a 2008 version of the DL-26 form, which provides chemical test warnings to the driver. The defendant refused to read or sign the form, and subsequently refused to perform the chemical test. The defendant was found guilty of the M1 DUI General Impairment with Refusal, and was given a 90 day to 5 year jail sentence. 

The Superior Court ultimately upheld the DUI General Impairment conviction, but overturned the DUI Refusal enhancements. Specifically, the Court held that under Birchfield, in the absence of a warrant or exigent circumstances justifying a search, a defendant who refuses to provide a blood sample when requested by police is not subject to the enhanced penalties provided in 75 Pa.C.S.A. §§ 3803-3804. The case was sent back to the trial court so that the defendant could be re-sentenced on the DUI General Impairment (5 day mandatory and 6 month maximum) and not the DUI General Impairment with Refusal (90 day mandatory and 5 year maximum). 

Please note that this ruling is limited to cases where (1) a blood draw was the only form of requested testing (2) the blood draw request was done without a warrant and (3) the blood draw request was done without there being exigent circumstances present. If you refuse a breath test, you will still be subject to the DUI Refusal penalties. This decision also has no impact on the civil license suspensions imposed as a result of refusing chemical testing. 

As always, any person facing a DUI charge should not attempt to defend themselves regardless of any legal research they've conducted over the internet. If you're charged with a DUI in Pennsylvania, contact an attorney immediately.