A man attempting to retroactively apply the U.S. Supreme Court’s recent ruling in Birchfield v. North Dakota to the pending appeal of his DUI conviction cannot do so because he failed to raise the relevant issue prior to his appeal, the Pennsylvania Superior Court has ruled.

A split three-judge panel issued a memorandum Oct. 31 in Commonwealth v. Pippen affirming the denial of Allen Pippen’s petition seeking to challenge the voluntary nature of a blood draw that contributed to his conviction for driving under the influence. The court also rejected his claim that the compulsory joinder statute of the Pennsylvania Code precluded his criminal prosecution because he had already been prosecuted of related charges in Municipal Court.

Pippen was found guilty in Municipal Court of summary offenses stemming from a 2013 incident, Senior Judge William H. Platt wrote for the 2-1 majority. Pippen motioned to bar his DUI prosecution under the joinder provision but was denied by the Municipal Court judge, then found guilty and eventually sentenced by the trial court to between 90 and 180 days in county prison.

On appeal to the Superior Court, Pippen alleged for the first time that his blood test results should be suppressed because his consent to the blood draw was involuntary, Platt said. Pippen cited the 2016 U.S. Supreme Court ruling in Birchfield, which was decided shortly after his sentencing and prior to his appeal and dealt with the constitutionality of blood tests.

When a U.S. Supreme Court decision results in a new rule of law, that rule applies to all criminal cases still pending on review, Platt said, but only if the appellant preserved the issue “‘at all stages of adjudication up to and including the direct appeal.’” In Pippen’s case, the voluntariness of the blood draw was not challenged before either the Municipal Court or the trial court, Platt noted.

“He instead raised the claim for the first time in his Rule 1925(b) statement,” Platt said. “Based on the foregoing legal authority, we agree with the trial court and the commonwealth that he waived it.”

As for the compulsory joinder rule, Platt found the Superior Court’s recent en banc ruling in Commonwealth v. Perfetto instructive. That cased noted the “‘unique jurisdictional organization of the Philadelphia courts’” in concluding that a summary conviction of the Municipal Court did not bar subsequent prosecution of more serious offenses under the rule. Applying Perfetto, Platt said the rule did not bar Pippen’s prosecution on DUI charges. The decision affirmed his sentence.

Judge Mary Jane Bowes joined Platt’s memorandum. Judge Anne Lazarus filed a concurring and dissenting memorandum stating that because the voluntary nature of Pippen’s blood draw implicated the legality of his sentence, it could not be waived and his sentence should be vacated to allow for a re-evaluation of his “purported consent.”

Robert Jackel, who represented Pippen, said he will petition the Pennsylvania Supreme Court to review both issues. The Superior Court’s ruling on compulsory joinder “creates more uncertainty on the part of anyone facing a traffic violation” because they may face appearances in two courts without knowing how the outcome of one affects the other, he said.

Hugh Burns Jr. of the Philadelphia District Attorney’s Office, who represented the state, did not return a call for comment.