In Birchfield v. North Dakota, 579 US _ (2016), the Supreme Court of the United States changed the Driving Under the Influence laws throughout the United States. More specifically, in Pennsylvania, the holding in Birchfield calls for sweeping changes to our DUI laws. Philadelphia criminal defense lawyers have all new ways to fight with new DUI law in Driving Under the Influences cases throughout Pennsylvania. Birchfield opens the door on two new battle grounds for DUIs in Pennsylvania.

  1. Refusals are now tier one offenses.
  2. Law enforcement needs a warrant to draw blood unless there is exigency.


Pre-Birchfield, if you refused, your DUI charge was a tier three offense, meaning you were facing 72 hours in jail for your first offense, 90 days in jail for your second offense, and 1-2 years upstate on your third driving under the influence offense. The holding of Birchfield states the statute is unconstitutional if the defendant is exposed to increased criminal penalties for a refusing a blood test because McNeely stated that a warrant or probable cause plus exigency was needed for blood draw.

The Pennsylvania the penalty for DUI statute 3802(a)(1) for refusal for a blood draw is unconstitutional because in applying the enhancement under 3802(c) police do not distinguish between blood or breath at the time of the refusal. The consent forms used by the police are the same for blood and breath.

The new penalties for refusals bounce back to tier one, and are 6 months probation for your first offense, 10 days in jail for your second offense, and 30 days in jail for a third offense.

Some prosecutors may argue the new refusal law only applies to blood cases. They are wrong. In Pennsylvania, the written warnings do not distinguish between blood and breath. At the time the police officer or state trooper gives the informed consent, the written document does not talk about consent for blood or breath, therefore, under Birchfield, all refusals are tier one.

Blood Draw

Telling the defendant she will receive an increased penalty for a refusal on the blood draw consent form is coercive and therefore unconstitutional. If law enforcement wants to draw your blood they need to get a warrant or express exigent circumstances. Exigent circumstances means there is an emergency that will not allow a law enforcement officer to get a warrant. The situation would have to be quite pressing; demanding the blood be drawn with great immediacy.

If no warrant was obtained and your blood was drawn, you must argue consent to get the blood suppressed. The government has already created new forms in an attempt to obfuscate their duty to get a warrant. The new forms do not have the enhanced penalty section. The government will argue the new forms are not coercive under Birchfield, therefore, a warrant is not required for a blood draw. If the new forms hold up, the government will not be required to get a warrant to take blood.


First, find out which warnings were used. The new DUI law has forced two different sets of warnings. For cases using the old warnings, the government likely will proceed under a general impairment theory of prosecution; meaning the blood is out. The government has to decide whether they want to go for general impairment due to alcohol or drugs—or both. This is a huge departure from previous DUI trials. The burden of proof on the government on DUI has become much harder. This means trial. Call the case ready. Under a general impairment theory, the government has to show that you were unfit to operate the motor vehicle safely with something other then the substance in your blood, beyond a reasonable doubt. How does a judge or jury determine bad driving: was there a statement, field sobriety testing, an accident, checkpoint, traffic violation, or something else?

  • Try to suppress all statements.
  • Make sure the field sobriety testing was done correctly or argue the incorrect field testing may be admissible but given little weight.
  • In an accident, make sure an eyewitness to the accident is present to testify because the police did not witness the accident. Testimony about the accident or who is at fault for the accident is hearsay unless the other driving testifies in court.
  • In the witness appears, do a hard cross examination on that witness on bad driving and fault for the accident.
  • In a checkpoint case, argue straight up not guilty because a checkpoint in no way implies bad driving or unfit to operate a motor vehicle safely. The police would have never stopped you but for their own creation of the checkpoint. A checkpoint shows zero evidence of bad driving.
  • If the claim is a traffic violation did the trooper issue the ticket? Review the ticket with great scrutiny and be sure the ticket is for something that would show bad driving. Swerving goes to bad driving, but speeding does not. If you get a ticket for something that shows you have great control of your vehicle, the argument is that you were a superb driver, not a bad driver.

In cases where the new warnings are used, we have to wait to learn about possible litigation. Obviously, in blood cases, the move now is to refuse because the penalty for refusal is less then the penalty for the blood draw regardless of what the person has in their blood. However, the new blood draw paperwork doesn’t explain the penalties. Challenges will come, so your Philadelphia DUI defense attorney has to battle. While there are somewhat more sever license suspensions in a refusal case, most client’s focus is on jail time. There is a huge difference between ten days in jail served on five weekends and 90 days flat in the general population. At first glance the new blood warning seems to pass, but like anything in law, we have to wait and see.

Mostly importantly, the trial issue under a general impairment is whether the defendant can operating a motor vehicle safely. The amount of the substance is unknown to the judge or jury. Smells of booze and drugs, and observations about the the person are not enough for a conviction. The prosecution must put on some evidence of bad driving or some inability to operate the vehicle safely. The standard is reasonable doubt, so if there is no evidence of the substance actually in the person’s body, the prosecutor is going to need to put on quite a lot of evidence to get over the reasonable doubt hump. Think about it like this: a person has one beer and gets a beer spilled on them. They get stopped at a checkpoint. No evidence of anything other then smell. Should be a not guilty.

Lastly, the act of refusing to take blood test is not evidence of guilt. You are allowed to refuse. Refusal is no indicator of any substance in your body, nor is a refusal evidence of bad driving. The assertion of your right to be free from governmental intrusion is never evidence of guilt—think right of silence. While you can’t suppress the refusal itself, you may be able to keep it out under a general relevance theory in a motion in limine for a blood refusal. Under a general impairment prosecution there is no per se unfit to operate, so the prosecutor has to put on a full case.

Obviously there is still uncertainty. If a blood draw was taken illegally under the new DUI law, the prosecutor decides not to use the blood analysis, and proceeds under general impairment only, what happens if the defendant testifies? If the defendant is on the stand and says they did not drink or did not use drugs, can the prosecutor use the blood to impeach the defendant?

With Birchfield, we should fight DUI’s with great fervor and really challenge the prosecutor’s evidence. Best part: Alito wrote the opinion. More to come as Birchfield develops.

Brian J. Zeiger, Esquire, is an experienced and successful criminal defense and civil rights attorney. He is a seasoned trial lawyer with significant experience before juries and judges. Brian understands civil rights cases, including Taser, Wrongful Death, Excessive Force, Police Brutality, Police Misconduct, Malicious Prosecution, Monell Claims, Sexual Assault, Prisoner’s Rights, Time Credit, Medical Malpractice, and Medical Indifference.