This revision derives directly from the constitutionality of a blood draw without a search warrant.

Alfonso Gambone
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Alfonso Gambone is a Philadelphia criminal defense attorney dedicated to protecting your rights.

Our criminal defense law firm is committed to providing its clients with the most up to date information in Pennsylvania and New Jersey.  I’ve written a ton on drunk driving, drug testing, breathalyzer’s, and implied consent in Pennsylvania. Recently, Governor Wolf has signed into law a revision to Section 1547, specifically the section which explains what a police officer must do following an arrest for DUI with regards to chemical testing.

The Previous Section 1547– Chemical Testing to determine the amount of alcohol or controlled substances

Previously Section 1547 stated that if a person refused to submit to chemical testing (blood or breath), they would be subject not only the criminal penalties under Section 3804 (fines, costs, 3 days in jail and a 12 month license suspension), but also mandatory civil sanction of a license suspension as well.  Read my article on the 9 types of drunk driving offenses and check out my free book—5 Ways to Fight & Win Your Pennsylvania DUI Case. 

The Pennsylvania created this section specifically to encourage a person to take chemical tests following an arrest for DUI. If you recall, the Pennsylvania DUI statute is divided into tiers and penalties increase with a person’s BAC level. There is also a general DUI impairment section which doesn’t require the prosecution to present any BAC evidence. The New Jersey DWI statute operates on a similar tier structure.

The Legislature knew that if it didn’t create this double penalty system, everyone would have an incentive to refuse the chemical tests and make the prosecutor’s job much harder. The double penalty system compounded the DUI penalty through a civil sanction (license suspension through PennDot) and a criminal conviction of a one year license suspension. There is no constitutional right against these criminal and civil penalties because driving is not a right but a privilege.

 

What sparked the change to Section 1547?

 

The United States Supreme Court case in Birchfield v. North Dakota dramatically changed chemical testing in Pennsylvania and every other state which utilizes blood testing. In the Birchfield decision, the Supreme Court specifically stated that police needed a search warrant to draw a person’s blood. This decision removed the criminal penalty for a DUI blood refusal and also called into question the civil sanction. While Pennsylvania has the ability to legislate issues like implied consent, the form that it uses to address that section of the driving code (DL-26) contained wordings which referred to a criminal penalty, which is no longer constitutional. Police and law enforcement believed that they can correct this issue by simply creating a form (DL-26B) which removed the language regarding a criminal penalty from the warnings required through the previous Section 1547.

 

The New 1547

Prior to the update, Section 1547 (b)(2), stated that it was the duty of the police officer to inform the person that their operating privileges will be suspended upon refusal to submit to chemical testing (blood or breath). The recent update however to the section changes the language to breath testing as opposed to the general chemical testing. This revision derives directly from the decision in Birchfield and the constitutionality of a blood draw without a search warrant. While the Birchfield decision dealt with the Fourth Amendment and the issue of illegal search and seizure it created an issue with Pennsylvania’s implied consent law because police were forced to read or exclude language which contained a criminal penalty which was no longer enforceable.

 

The revised section states the following:  “if a person refuses to submit to chemical breath testing, upon conviction or plea violating Section 3802a1 (drunk driving), the person will be subject to penalties provided in Section 3804 (relating to drunk driving).” This revision was passed by the Senate and House on July 10, 2017, and signed by the Governor on July 20, 2017. It clearly modifies Section 1547 to reflect the issues raised and decided in the Birchfield decision.

 

For more information on drunk driving (and other driving under the influence criminal offenses) I encourage you to keep reading my blog, watch my videos, and visit my free download section.

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