The Pennsylvania Supreme Court has agreed to hear arguments over whether it’s unconstitutional for a DUI suspect’s refusal of a warrantless blood draw to be used against him at trial.

The court granted allocatur in Commonwealth v. Bell on April 5, agreeing to consider a single issue: “Whether Section 1547(e) of the Vehicle Code, 75 Pa.C.S. Section 1547(e), is violative of Article 1, Section 8 of the Pennsylvania Constitution and the Fourth Amendment to the United States Constitution to the extent that it permits evidence of an arrestee’s refusal to submit a sample of blood for testing without a search warrant as proof of consciousness of guilt at the arrestee’s trial on a charge of DUI?”

Last July, the Superior Court reversed a Lycoming County trial judge’s decision to grant defendant Thomas Bell a new trial after he was convicted on a DUI charge and a summary traffic violation.

The trial court, relying on the U.S. Supreme Court’s 2016 ruling in Birchfield v. North Dakota, had found that admitting Bell’s refusal into evidence at trial violated his Fourth Amendment right to be free from unreasonable searches.

But Judge Correale Stevens, writing for the Superior Court, said both federal and state court precedent have held that defendants who are lawfully arrested for DUI do not have a constitutional right to refuse a warrantless blood test.

In the 1983 case South Dakota v. Neville, the U.S. Supreme Court concluded that the admission of evidence of a defendant’s blood test refusal did not violate either the Fifth Amendment right against self-incrimination or the 14th Amendment right to due process.

In its 1997 decision in Commonwealth v. Graham, the Superior Court held that a driver’s right to refuse a warrantless blood draw is derived from the state’s Implied Consent Law, not the Constitution.

“Based on the reasoning set forth in Neville and Graham, we find appellee had no constitutional right to refuse a blood test upon his lawful arrest for DUI and thus, it was constitutionally permissible for the prosecution to introduce evidence of this refusal at his trial on DUI charges,” Stevens said.

Stevens also called the trial court’s reliance on Birchfield “misplaced” because that decision held only that it was unconstitutional for implied consent laws to criminalize a driver’s refusal to submit to chemical testing. The Birchfield court expressed approval of civil penalties and evidentiary consequences for drivers who refuse chemical testing, Stevens said.

“The Supreme Court’s decision in Birchfield did not provide that … an individual has a constitutional right to refuse a warrantless blood test, but stressed that ‘there must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads,’” Stevens said, adding, “Based on the Supreme Court’s language approving civil penalties set forth in implied consent laws, we conclude that it is reasonable to deem motorists to have consented to civil penalties such as license suspension and evidentiary consequences if they choose to refuse to submit to chemical testing upon a lawful arrest for DUI.”

Stevens was joined in the decision by Judges Jacqueline Shogan and Geoffrey Moulton.

Lycoming County District Attorney Kenneth Osokow declined to comment on the allocatur grant except to say, “We think the Superior Court decision was right.”

Counsel for Bell, Peter Campana of Campana, Hoffa, Morrone & Lovecchio in Williamsport, said he and his client were “very happy” that the high court decided to take up their appeal and that the Defender Association of Philadelphia has already expressed interest in participating as amicus.