The Pennsylvania Supreme Court granted allocatur in Commonwealth v. Hays, 2018 Pa. Super. Unpub. LEXIS 176 (Jan. 19, 2018), on July 24, to decide the following: Should Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), apply to all cases not yet final when the decision was rendered? This is the second Birchfield-related case involving warrantless blood draw evidence accepted by the Pennsylvania Supreme Court this year. In the other case, Commonwealth v. Bell, 167 A.3d 744 (Pa. Super. Ct. 2017), allocatur granted April 5, the Pennsylvania Supreme Court is set to decide whether a driver’s refusal to submit a warrantless blood sample may be used as evidence against the driver at trial. Ironically, I prosecuted both the Bell and Hays cases during my tenure as an assistant district attorney in Lycoming County. I recently wrote an article about the Bell case published here on June 26, and now discuss the Hays case below.

General Introduction to ‘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.