For the Defense - Volume 1, Issue 3 - 2016 - 74

The refusal penalty enhancement accelerates even further on a third offense. The third offense general impairment conviction is a Misdemeanor of the Second Degree, which jumps to a Misdemeanor of the First Degree when the individual refuses.13 The minimum mandatory sentence for a third offense general impairment conviction, imprisonment for not less than 10 days, jumps to imprisonment for not less than 1 year when the individual refuses testing.14 The fact of refusal increases both the maximum sentence and the minimum mandatory sentence applicable to the default general impairment offense defined by Section 3802(a)(1). These enhanced penalties for the "aggravated refusal" offenses manifestly violate the rule announced in Birchfield that "motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense." Accordingly, no sentence may validly be enhanced based on refusal of a warrantless request to submit to blood testing.15 Birchfield supports this argument. The Birchfield decision also has potential application to the ARD process. Section 3807(d)(3) (ii) requires a 60 day suspension for ARD where "the defendant's blood alcohol concentration is not known." This is intended to be a punishment for refusal. If a motorist refuses to submit to an unconstitutional warrantless blood test, that refusal cannot be punished by suspension as a criminal sanction consistent with Birchfield's prohibition of criminal punishment for protected refusal. The application of an enhanced refusal suspension required by Section 3807(d)(3)(ii) is unconstitutional as applied to a refusal of a warrantless blood test.16 It remains to be seen how the invalidity of Section 3807(d)(3)(ii) can best be litigated. A Motion filed prior to acceptance into ARD requesting a declaration that this provision is invalid seems like the best way to raise the question without jeopardizing the defendant's right to participate in ARD. Voluntariness of Consent to Blood Testing Birchfield actually does not hold that consent is vitiated by incorrect and unconstitutional threats 74 For The Defense | Vol. 1, Issue 3 of invalid criminal sanctions. The Beylund case presented that question, but that matter was remanded for reconsideration of the holding that refusal could not be punished by criminal sanctions. The Supreme Court suggests that this voluntariness question will be resolved on traditional "totality of the circumstances" analyses. The Court specifically stated, "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."17 However, this analysis will necessarily include an assessment of the effect of the false and improper admonition that a refusal to consent will result in enhanced criminal penalties. The Vehicle Code specifically requires that police officers inform motorists that " if the person refuses to submit to chemical testing, upon conviction or plea for violating section 3802(a)(1), the person will be subject to the penalties provided in section 3804(c) (relating to penalties)."18 Pennsylvania courts apply the traditional "totality" analysis to assess voluntariness.19 In Commonwealth v. Smith, the Pennsylvania Supreme Court summarized the rules to be applied in assessing the voluntariness of consent to a blood test: In determining the validity of a given consent, "the Commonwealth bears the burden of establishing that a consent is the product of an essentially free and unconstrained choice-not the result of duress or coercion, express or implied, or a will overborne- under the totality of the circumstances." Strickler, 757 A.2d at 901; see also Schneckloth, 412 U.S. at 228-29 (invalidating searches that are the result of "subtl[e] . . . coercion" or "stealthy encroachments"); Wright, 190 A.2d at 711 (consents to search "may not be gained through stealth, deceit or misrepresentation . . . ."). "The standard for measuring the scope of a person's consent is based on an objective evaluation of what a reasonable person would have

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