For the Defense - Volume 1, Issue 3 - 2016 - 73

cases does not decide whether the consent given by petitioner Beylund was voluntary or involuntary as a matter of law. The Court addresses voluntariness in this passage.6 Unlike the other petitioners, Beylund was not prosecuted for refusing a test. He submitted to a blood test after police told him that the law required his submission, and his license was then suspended and he was fined in an administrative proceeding. The North Dakota Supreme Court held that Beylund's consent was voluntary on the erroneous assumption that the State could permissibly compel both blood and breath tests. Because voluntariness of consent to a search must be "determined from the totality of all the circumstances," Schneckloth [v. Bustamonte, 412 U. S. 218 (1973)], at 227, we leave it to the state court on remand to reevaluate Beylund's consent given the partial inaccuracy of the officer's advisory (footnote omitted). .... The voluntariness of consent will be analyzed using both federal constitutional principles and state law. Aggravated Penalties for Refusal The first issue presented by these cases will be whether Pennsylvania law violates Birchfield's holding that a criminal conviction cannot be premised on refusing an unlawful search. The petitioner Birchfield had been convicted of a criminal refusal of a warrantless blood test, and that conviction violated Birchfield's constitutional right to refuse to submit to a warrantless blood test.7 Pennsylvania's laws impose enhanced criminal penalties for refusal of blood testing, but do not designate a separate criminal offense for refusal. However, the enhanced penalties for refusal contained in the Pennsylvania Vehicle Code create an enhanced "aggravated" offense pursuant to federal due process principles, and the imposition of those "aggravated refusal" penalties constitute unconstitutional punishment for the protected refusal of an unconstitutional request for a warrantless blood test. Federal due process principles require that any fact which increases the statutory maximum or the minimum mandatory punishment for an offense be treated as an element of an "aggravated offense." In Apprendi v. New Jersey, the Supreme Court determined that a jury must generally find facts that increase the penalty for a crime beyond the mandatory maximum.8 In Alleyne v. United States, the Supreme Court concluded that the Apprendi rule for mandatory maximums also applies when the mandatory minimum is increased.9 These two decisions together establish that, at least for federal due process analysis, an enhanced maximum or minimum mandatory sentence creates a separate, aggravated criminal offense, the elements of which must all be decided by a jury.10 In Pennsylvania, a refusal creates an enhanced maximum and an enhanced mandatory minimum sentence, and so creates a separate aggravated DUI refusal offense. Pennsylvania's DUI laws increase both the maximum sentence available, and increase the mandatory minimum sentence prescribed, for general impairment offenses when the individual refuses a request to submit to a warrantless blood seizure. Chapter 38 of Title 75 contains the comprehensive set of rules that govern DUI prosecutions. Section 3802(a)(1) creates the general impairment offense. By default, that offense is an ungraded Misdemeanor with a mandatory term of probation.11 The enhanced penalties that result from refusal are substantial and increasing. When the person refuses testing, the minimum mandatory penalty for a violating 3802(a)(1) becomes imprisonment of not less than 72 consecutive hours.12 The second general impairment offense remains an ungraded Misdemeanor, but when the second offense includes a refusal the grading becomes a Misdemeanor of the First Degree, with a maximum sentence of 5 years imprisonment. The minimum mandatory sentence for a second offense general impairment conviction, imprisonment for not less than 5 days, jumps to imprisonment for not less than 90 days when the individual refuses testing. Vol. 1, Issue 3 | For The Defense 73

Table of Contents for the Digital Edition of For the Defense - Volume 1, Issue 3 - 2016