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Pennsylvania Supreme Court Retroactively Applies Birchfield, Holding that Enhanced Criminal Penalties for Refusing Warrantless Blood Tests are Unconstitutional

by Douglas Ankney

The Supreme Court of Pennsylvania retroactively applied Birchfield v. North Dakota, 136 S.Ct. 2160 (2016), holding that Samuel Anthony Monarch’s enhanced penalties for refusing warrantless blood tests following his arrest for driving under the influence (“DUI”) were unconstitutional.

In July 2015, Monarch was suspected of DUI. Three times, he was asked to submit to blood and breath tests, and each time he refused. He was charged, inter alia, with DUI pursuant to 75 Pa.C.S. § 3802(a)(1). The trial court instructed the jury that if they found Monarch guilty of DUI they must also “make a finding either he did or did not refuse the testing of blood.” The jury found Monarch guilty and found he “did refuse testing of blood.” Subsequently, Monarch was sentenced from one to five years under 75 Pa.C.S. § 3804(c)(3)(i), which requires a minimum sentence of one year for anyone convicted of three or more DUI offenses who also refused a blood or breath test. Monarch appealed.

After Monarch submitted his Pa.R.A.P. 1925(b) statement, the Supreme Court of the United States (“SCOTUS”) decided Birchfield. In his brief, Monarch also argued that his enhanced penalties were unconstitutional per Birchfield, even though the issue was not one of the issues included in his 1925(b) statement. The Superior Court addressed the merits of the issue because it concerned the legality of the sentence, and thus, it was “nonwaivable.” The Superior Court affirmed because Monarch also had refused a breath test. The Pennsylvania Supreme Court granted further review.

The Court stated that, “As a general rule, ‘in order for a new rule of law to apply retroactively to a case pending direct appeal, the issue had to be preserved at all stages of adjudication up to and including the direct appeal.’” Commonwealth v. Jones, 811 A.2d 994 (Pa. 2002). “However, an exception to the issue-preservation requirement exists where the challenge is one implicating the legality of the appellant’s sentence.” Commonwealth v. Barnes, 151 A.3d 121 (Pa. 2016). In Barnes, the Court ruled “where the mandatory minimum sentencing authority on which the sentencing court relied is rendered void on its face, and no other separate authority supported the sentence, any sentence entered under such purported authority is an illegal sentence for issue preservation purposes on direct appeal.”

In Birchfield, SCOTUS ruled that the State’s drawing of blood without a warrant was unconstitutional. Therefore, it was unconstitutional to punish a defendant for refusing a warrantless blood test. But Birchfield also ruled that breath tests were minimally invasive and did not require a warrant. A defendant could, therefore, be punished for refusing to submit to a breath test. This ruling made unconstitutional the portion of 75 Pa.C.S. § 3804(C)(3)(i) that penalized refusal of a blood test.

The Pennsylvania Supreme Court observed that Monarch received the enhanced penalties because his jury explicitly found that he “did refuse testing of blood.” Since the jury made no finding that Monarch refused a breath test, the Superior Court erred when it affirmed on that basis. The Court concluded there was no legal basis for Monarch’s mandatory minimum sentence of one year imprisonment. Accordingly, the Court reversed the order of the Superior Court, vacated Monarch’s sentence, and remanded to the trial court for resentencing. 

See: Commonwealth of Pennsylvania v. Monarch, 2019 Pa. LEXIS 346 (2019). 

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