By Kyle Steenland, Associate Editor
Pennsylvania’s driving under the influence laws may be unconstitutional after a recent Pennsylvania Supreme Court holding. The Court interpreted the constitutionality of “implied consent” roadway statutes – to which vehicle operators automatically consent by simply using that state’s roads – and their interaction with accidents resulting from suspected drunk driving.
Pennsylvania’s DUI statute, 75 PA. CONS. STAT. §3802(a), “An individual may not [drive or operate] a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of [safely operating the] vehicle.”[1] The Commonwealth is then authorized by §1547(a) to conduct blood or breath tests on any individual suspected of driving under the influence of alcohol or a controlled substance.[2] The authorization under §1547(a) comes from what is known as “implied consent.” The implied consent law applies to all individuals who operate a motor vehicle within the Commonwealth and is considered to be part of the “deal” to receive the privilege of a driver’s license.[3]
The penalty for refusing one of these tests is immediate suspension of the driver’s license for twelve to eighteen months, and the individual is fined a “restoration fee” of $500-$2,000 depending on if their license had previously been suspended.[4] Further penalties can accrue if the individual is later convicted of driving under the influence.[5] These additional penalties include imprisonment of not less than 72 hours, a fine of $1,000 to $5,000, an alcohol highway safety school class, and a drug and alcohol treatment program.[6]
From a rights-advocate perspective, these laws may seem like a surreptitious way the individual unknowingly and unintentionally sacrifices rights to privacy and freedom from physical invasions. However, after considering that 10,497 individuals died in 2016 from alcohol-impaired deaths, the sacrifice becomes understandable.[7]
Principle aside, things become even more complicated when §3755 comes into play. This statute states that emergency room personnel “shall promptly” take blood samples from drivers involved in an accident while potentially driving under the influence.[8] The results of the blood tests are to be released upon request to the person tested, their attorney, their physician, or governmental officials or agencies.[9]
It is the intersection of these three statutes that the Supreme Court examined in the soon-to-be-landmark-case of Birchfield v. North Dakota.[10] Birchfield is actually the consolidation of three petitioners’ stories. All were arrested on drunk-driving chargers. Two outright refused the statutorily authorized blood or breath test and the third argued his consent to the blood draw was coerced.[11] These tests were predicated on statutes similar in nature to Pennsylvania’s §1547, the implied-consent statute, and all carried with them either civil or criminal penalties for refusal.
Ultimately, the Court held that the Fourth Amendment permitted warrantless breath tests incident to arrests for drunk driving, but not blood tests.[12] The Court reasoned that blood draws were too intrusive to the individual to not require the traditional protections of a warrant. Breath tests however were viewed as “not invasive of the body” and therefore do not require warrants.[13] Additionally, the Court deemed implied-consent laws to be constitutional provided they offer only civil penalties and not criminal.[14]
In all three of the petitioner’s cases was the opportunity for the individual to consent or refuse the blood or breath test. The individual was presented with the possibility of a blood draw or a breath test, and each made an overt and intentional decision whether to consent or refuse and accept the consequences.
What if, however, the individual was put into medically-induced unconsciousness after a suspected drunk driving accident, and thus unable to provide an answer? And what if there is a statute identical to Pennsylvania’s §3755 which states drunk drivers involved in accidents are automatically to have their blood drawn and tested for alcohol content?
These post-Birchfield questions were examined by the PA Supreme Court in Commonwealth v. Myers.[15] The Court interpreted the collision of this situation and these statutes with Birchfield and yielded a holding in favor of the citizen.
It held that the individual must be provided with the opportunity to make a “knowing and conscious choice” between consenting to a test or refusing and accepting the accompanying ramifications.[16] The Court further concluded that §1547 does not provide an independent exception to the warrant requirement of the 4th amendment when a blood test is in question, and thus the blood drawn from the pharmacologically rendered unconscious respondent was involuntary and thus unconstitutional.[17]
To play a final round of devil’s advocate, what if the defendant in question were rendered unconscious by their own intoxication and not by pharmacological means? Would that sacrifice their right to affirm or deny a blood draw? This question is yet to be tackled, but the answer holds a delicate public policy decision at issue.
Sources
[1] 75 PA. CONS. STAT. §3802(a)
[2] 75 PA. CONS. STAT. §1547(a)
[3] Missouri v. McNeely, 569 U.S. 141, 159 (2013)
[4] 75 PA. CONS. STAT. §1547(b)
[5] Id.
[6] 785 PA. CONS. STAT. §3804(c)
[7] https://www.nhtsa.gov/risky-driving/drunk-driving
[8] 75 PA. CONS. STAT. §3755(a)
[9] Id.
[10] Birchfield v. North Dakota, 136 S. Ct. 2160 (2016)
[11] Id. at 2170
[12] Id. at 2185
[13] Id. at 2183
[14] Id. at 2185
[15] Commonwealth v. Myers, 164 A.3d 1162 (Pa. 2017)
[16] Id. at 1177
[17] Id. at 1181
